EU Patent Wars to Resume 184
replicant108 writes "Ciaran O'Riordan of the FSFE gives a concise analysis of why the EU Software Patent Wars will resume this winter. Apparently the pro-patent side have changed their strategy — this time they plan to bypass the legislative powers and target the judiciary instead. The goal is to transfer power from the national courts (which often rule against software patents) to a specially-created European Patent Court which will be controlled by the pro-software patent EPO!"
A hippocratic oath for coders? (Score:4, Interesting)
And they still wonder? (Score:2, Interesting)
Well, the few of us that are even allowed to vote, that is.
Time to dust off my software patent directive! (Score:5, Interesting)
So..to who should I send it now; the european court?
Anyway, here you go:
The software patents manifesto
Manifesto on the directive of "computer implemented inventions"
Dear MEP,
As you are probably well aware, soon the EU parliament will have a 'second reading' of the directive for allowing patents on "computer implemented inventions", which, as I will show below, actually amount to allowing software patents (swpat), though this is heavily disputed and denied by the proponents of the directive, including the European Commission (EC).
The way in which this directive has gone through the EU Council of ministers is mind boggling and shows exactly how much the EU has a democratic deficit. Despite the fact there was no real majority for the draft any more (the change in vote-weight after the enlargement alone accomplished that, apart from a lot of change of minds of some other countries), despite the fact that stringent motions of national parliaments were passed to oblige the national ministers to redraw the proposal as an A-item so that it may be further discussed, despite the fact that the EU parliament and their JURY-commission asked for a new first (re)reading with almost unanimity, the EC chose to ignore and disregard all this, while giving no explanation, apart from "for institutional reasons as to not create a precedent". In other words, the "common position" had to be followed, even though there was no common position any more, because, apparently, the form is more important then the facts.
This is a stupefying prime example of absurd bureaucratic reasoning and mentality; to give more importance to formality, and to place appearances before the changing facts. Bureaucracy abhors changes, even to the detriment of real democratic values. But then again, maybe this shouldn't surprise us, as the EC is exactly that: bureaucrats, whom were never voted into the position they occupy, yet create laws that could potentially influence millions of EU citizens (to which they do not have to answer to). The EU constitution leaves this democratic deficit as it is, alas. And as seen by the handling of this directive, the deficit is pretty huge.[1]
I will not go further into the procedural mess and the apparent disrespect of the EC for the EU parliament, but rather concentrate on the different aspects of the directive itself (content). I will do this by stating, and then debunking, the rather dubious claims and arguments made by the pro-directive camp, which, alas, also include some misguided MEPs - though I haste myself to say the large majority of the EU parliament is well aware of the facts, as can be readily seen by the amendments made in the first reading.
The following statements for why it is necessary to have the (current) directive is as follows:
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
2)It is necessary for the stimulation of EU software business, so we can effectively compete on the world-market.
3)It is needed for the harmonisation of the internal market, and to retain the status quo. (Similar as the "we do not change the current practise" or the "it will avoid drifting towards US-style patentability" -argument).
I will now debunk all these arguments (sources mentioned at the end of the document) in a rational and clear way, instead of all the FUD currently being made by many of the softwarepatents (swpat) proponents.
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
First of all, we have to ask ourselves, what, exactly, a patent is. A lot of pro-swpat advocates use terms as Intellectual Property (IP) rights, while those encompass a lot of different concepts, such as copyright (which is already used for software). We can find the following
oh dear (Score:3, Interesting)
That will suck. I guess I can always dedicate the patents afterwards, so long as it prevents someone else from trying to make me not use my own work.
I may be over-reacting, hope so, but software patents are a terrible idea.
Won't work (Score:3, Interesting)
Re:A hippocratic oath for coders? (Score:4, Interesting)
Software patents are manacles imposed on software engineers.
Whilst it's nowhere near as severe, there is a similar principle at stake here to slavery. If you don't believe in slavery (removing the freedom from coders everywhere to reinvent wheels and utilise them) then you really shouldn't tolerate it, and that includes tolerating your employer doing it.
One might just tolerate employers having software patents as deterrents with a tacit "Oh, but of course, we'd never actually use them!", but I'd rather find another employer, a more enlightened one, than share in the benefit from the removal of others' freedom.
Make a stand, you wouldn't be alone.
Like Terrorists.... (Score:4, Interesting)
My opinion is that we should allow patents on absolutely everything, and simply let the patent trolls cause the entire system to implode on itself.
Alternative approach for ethical coders (Score:5, Interesting)
All you need to do to fight patents very effectively is to ensure that your key ideas are released to the FOSS world as programming "noddies", ie. small example programs that illustrate the concept. Be very sure not to include any company code, nor any business logic.
That establishes the prior art, so that even if a patent is taken out for that idea, eventually your prior art will ensure its demise if a patent claim ever reaches the courts.
And if a company fires you for publishing your ideas in this way, well, it's not really the company that you wanted to work for in the first place.
Re:oh dear (Score:4, Interesting)
Re:A hippocratic oath for coders? (Score:5, Interesting)
Exactly. Been there and done that myself after the company I was working for got taken over by a US company. The new US owners wanted to patent a whole bunch of stuff that had been developed in the UK. They wanted the developers to put their names to the patents. I refused. They told me if I didn't agree I'd be first to go in the upcoming layoffs due to the merger. I jumped before I was pushed.
The company ended up going bankrupt in the end and the people who sold their souls ended up losing two months pay due to payroll not running and didn't get any redundancy payments from the administrators either. It's called karma I think...
Bob
Re:And they still wonder? (Score:2, Interesting)
The only problem with this, is that a legal system is comprised of the moral values of a society. To unite these different legal systems would mean to give up (or rather trade/bargain) the moral values of the societies it is based upon. To many people, this trade-in of moral values, whatever they might be, would be... immoral.
Re:oh dear (Score:2, Interesting)
As usual, Stallman has a cogent argument (Score:2, Interesting)
http://www.gnu.org/philosophy/fighting-software-p
http://www.gnu.org/philosophy/savingeurope.html [gnu.org]
Stallman: "Imagine that each time you made a software design decision, and especially whenever you used an algorithm that you read in a journal or implemented a feature that users ask for, you took a risk of being sued."
The key difference is that one person can easily create a single software product that sinultaneously contains any number of 'patentable' ideas. This is the opposite of patenting in eg. chemical engineering or pharmaceuticals, which tend to focus on a single complete process or product (such as a compound).
Turn the court to our advantage (Score:4, Interesting)
software patents but is vaguely worded to the point that some courts interpret
it to allow software patents. Thus in Europe today some countries' court
systems allow software patents and some disallow software patents. The pro
software patent lobby is trying to create a single Europe wide court that will
allow software patents all over Europe. The anti software lobby is trying to
block the single Europe wide patent court in an effort to keep software patents
from spreading. Part of the problem with fighting the proposed new court is that
aside from the software patent issue the single Europe wide patent court is
basically a good idea.
I propose that we block the single European patent court as a delaying tactic
only. In the meantime we should lobby to get the European patent laws amended
to where the anti software patent clause explicitly bans software patents in no
uncertain terms. There is a fair bit of support for such amendments among the
members of the European Parliament. Once we get the law amended then we could
enthusiastically support the creation of a unified European patent court
because the new court would disallow software patents all across Europe.
------------------
Steve Stites
Re:oh dear (Score:3, Interesting)
Patents are supposed to be an incentive for innovation.
Quicksort is a great example. It's not a product of software patents.
The fact is that patents didn't encourage the creator of quicksort, so qs _could_ be invented without the incentive of patents.
On the other hand, had it been patented, you would have 20 years of slow sorting algorithms and superfluous legal costs because of it.
The case must be made for software patents, that's why it's just dismissed, because there are a lot of drawbacks, and not a single tangible advantage.
Re:Alternative approach for ethical coders (Score:3, Interesting)
As for misappropriation of trade secrets, well, that's obviously a possible legal risk, but again, if you think the attempted patent is itself immoral, then the risk may be worth taking. To torture an analogy: abolitionists broke the law helping escaped slaves to freedom. Were their actions unethical simply because they were illegal?
The problem with your "argument" is that the premise we're exploring has already settled the issues you bring up and are discussing the how. Standing there shouting "but technically that's illegal and unethical" is ridiculous.
Re:But that's not (my) problem with software paten (Score:3, Interesting)
It is the unethical nature of the reward that is the problem.
Think of a king that rewarded the inventor of chess with a hundred slaves and concubines to do with as he would. Perhaps a financial reward would be better than one that involved the enslavement of one's fellow men - irrespective of whether such power is in the king's gift?
Software patents are a reward that consists of impacting the freedom of all other software engineers for a limited period, in order that the unscrupulous patent filer, blighter that he is, can enjoy making hay while his competitors' hands are tied.
Don't you think, for just a moment, that perhaps it's a tad unethical to restrain everyone's right to practice their craft, just because it might possibly encourage some genius who has an algorithm that no-one else has thought of, that this genius isn't even willing to tell anyone else about, to publish that algorithm?
Without software patents, such a genius must demonstrate to his fellow men that he has an amazing algorithm, and why it is so fantastic, and that he is prepared to disclose it to any person, or group of persons, in exchange for a goodly chunk of money. Why on earth can't this chappie be satisfied with money?
And if he can't find anyone who is interested in buying his secret, and yet continues to believe that his secret is amazingly powerful, well, perhaps he jolly well should simply keep it secret. When he has successfully exploited it, people can start offering him money for it.
If the point is, that's it's highly likely that someone else may think of it, well then, it bloody well shouldn't be patentable!
And if the problem is that the idea can't be exploited unless it is disclosed, well, no need for patents to encourage disclosure. The public acclaim would easily be sufficient to tip the balance between keeping a privately unexploitable algorithm secret vs published.
I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for my ingenuity.