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Community: Eurolinux Letter to the European Commission concerning Swpat Consultation

Mar 13, 2001, 22:30 (1 Talkback[s])

The EuroLinux Alliance is quite surprised that the European
Commission's Software Patent Consultation webpage seems to be
stagnating since December. What is even worse, the Directorate for the
Internal Market seems determined to go ahead with legalising software
patents before conducting any consultation. The signatories spell out
some basic requirements for a European Directive on the Limits of
Patentability regarding Software and the way to get there. It
describes a few test criteria and sets of test samples, against which
any directive proposal is to be measured.

To: Frits.Bolkestein@cec.eu.int
Cc: Erkki.Liikanen@cec.eu.int

Dear Sir, Dear Madam

We are surprised to note that your software patent consultation
webpage seems to be stagnating since December. Moreover we are
concerned about recent news that the Directorate for the Internal
Market is seeking a mandate from national governments to draft a pro
software patent directive without first concluding the consultation
process. In view of this situation, we beg to propose the following:

    * Conduct a serious consultation first!
    * Judge the Directive by its effect on a set of existing borderline cases!
    * Courageously eliminate the minority of non-technical patents!
    * Starting points for drafting a directive

Conduct a serious consultation first!
The letters submitted during the consultation should be published on
the Internet immediately. This consultation round should then be
concluded by a public hearing including some of the main participants,
to with all concerned politicians at the ministerial and parliamentary
level should be invited. Only after that can an order for the
preparation of a draft directive be possibly given.

So far, only very few of the numerous submissions sent to you through
our gateway (consultation@eurolinux.org) have not been published on
your site. All submissions sent through our gateway should be
considered as public except if mentioned otherwise. All other
submissions will hopefully also be published, so that are open to
public questioning and criticism, i.e. become part of a public
consultation process. We can think of no reason for the delay. If
preparing a nice website is time-consuming, why don't you just publish
the raw materials in their original electronic form (or graphical
files in case of paper submissions), so that others can do the work

In its invitation paper to government representatives, the DGIM claims
that software patents are wanted by all the major trade associations,
who "represent an overwhelming majority of European companies", while
apparently only a loud minority of open-source programmers opposes
software patents. Not only does the DGIM fail to mention that the
Eurolinux Alliance is supported by numerous non-opensource companies
of considerable size. It is moreover our experience that the quoted
trade associations have no position whatsoever on software patents
and, when asked, just hand over the question to their patent lawyer,
who is usually a loyal member of the patent movement, characterised by
a common credo of "the more patents the better" and complete disregard
or even ignorance about the reality of software patents. Contrasting
with this, the people in charge of R&D investment decisions in almost
all enterprises, even large ones of the telecommunications sector such
as Siemens and Philips, usually consider software patents more harmful
than useful. But usually nobody would ever consult them. One exception
to this has been a recent British field study about patents in
general, which concludes that they are "at best useless" in promoting
innovation in SMEs.

Under these circumstances, in order to conduct a correct consultation,
it is absolutely necessary to reveal the identity those trade
associations who allegedly support software patents and organise a
real discussion. This is especially necessary in the current situation
where those who are charged with moderating this discussion have in
the past repeatedly shown themselves to be faithful members of the
patent movement.

Judge the Directive by its effect on a set of existing borderline cases!
The directive will be judged by its effect on the software and
business method patents that have so far been granted by the European
Patent Office. How many of these will be upheld in court in the
future? Which kinds of patents will be rejected?

Whatever the EU directive will be, it must be accompanied by a paper
that cites a test sample of 50-100 EPO-granted software-related
patents and shows how they would be judged according to the new
directive proposal. A possibly suitable set of borderline cases would


Courageously eliminate the minority of non-technical patents!
Most of the patents in a list of 10000 European software patents
compiled the FFII look rather scary -- in no way better than even the
most trivial American software patents. Any new directive should be
designed in such a way that such patents no longer stand a chance of
being upheld in European courts. This could be achieved by formulating
clear standards for either technicity or inventivity or both. It is
self-evident that the current practise of the EPO cannot provide such
a standard. Unfortunately the consultation paper of the DGIM is only a
restatement of EPO practise. Like the EPO, it talks a lot about
"technical contribution" but at the same time fails to provide a
meaningful definition for distinguishing "technical" from
"non-technical" contributions.

As shown by a preliminary study, a clear technicity standard could be
used to reject the unwanted software patents without affecting the
others, leading only to a rejection of about 3% of the current patent
applications of the EPO. In view of the fact that the number of
applications is swelling by a daunting 10% p.a., this type of soft
reform may be welcomed even by the EPO.

In view of the overall poor performance of the patent system as a
promotor of innovation, addressing only the technicity issue may be
too soft an approach. Yet it is probably all that can be done within
the scope of the currently envisaged directive. Starting points for
drafting a directive The Eurolinux Alliance has published a directive
proposal as part of its submission to the EC consultation:

Regulation about the invention concept of the European patent system
and its interpretation with special regard to programs for computers

The Eurolinux regulation proposal gives a clear interpretation for the
current law, which corresponds to the traditional viewpoint of many
patent law experts, as it is still upheld by some European lawcourts,
such as the 17th Senate of the German Federal Patent Court (BPatG).

Moreover the Eurolinux regulation proposal has a desired effect of
eliminating approximately 30000 out of 1 million European patents, as
was shown by the above-mentioned study currently conducted by the

The Eurolinux regulation proposal should therefore be taken as one of
the starting points from which to build a European Software Patent
Directive. In case special anti-cloning protection is really demanded
by the software industry, as the DGIM claims in its invitation paper,
Mark Paley's Model Software Patent Act could provide a useful source
of inspiration.

We moreover propose that some of the judges of the 17th Senate of the
German Federal Patent Court be consulted in drawing up the
Directive. If possible, some less faithful and more critical patent
professionals like Dr. Kiesewetter-Köbinger, a former programmer and
current patent examiner at the German patent office who has written an
particularly lucid analytical paper on the software patentability
question, should be called to Brussels to help draw up a draft

We would feel very obliged if you seriously pursue the consultation
and do everything in your might to identify and defend the public

Yours sincerely

Jesus Gonzales-Baharona
Stéfane Fermigier
Anne Østergaard
Nicolas Péttiaux
Hartmut Pilch
Jean-Paul Smets
Luuk Van Dijk

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