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)
Re:A hippocratic oath for coders? (Score:4, Insightful)
While I'm quite strongly against software patents, my opposition isn't quite as great as my opposition to being unemployed and ineligible for unemployment benefit.
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.
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
But that's not (my) problem with software patents (Score:2)
The thing is, I don't personally have a problem with restricting the freedom of coders to rip off the results of others' hard work before those others
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 engine
Re:A hippocratic oath for coders? (Score:4, Insightful)
We are talking about a legal mechanism that determines whether human software engineers are free, or not free, to develop software.
There is no co-existence.
Either these people are free, or they are not (they must ensure they have permission from patent holders).
Which world do you prefer?
A world in which some people may control what algorithms other people are or are not permitted to utilise in their software (even if they typically independently reinvent them), or a world in which people are free to develop software without any need to obtain anyone else's permission?
As to dealing with this issue, I am indeed proposing how to do so.
protection for programs (Score:2)
I have no problem with companies making money off programs, but they should not be able to patent the parts that make the program, just the program itself.
There already is protection for software producers, it's called copyright. As far as making money off of software there are a number of companies who do that with open source software.
FalconRe:protection for programs (Score:2)
Copyright = Protection for an individual implementation of an idea.
Patent = Protection for an entire idea and all possible implementations that have and may come from it by anyone.
One is reasonable, the other is not. I leave which as an exercise for the reader.
Re:A hippocratic oath for coders? (Score:3, Insightful)
An anti-hypocritical oath for judges to serve their society instead of their corporations would probably be more effective.
Re:A hippocratic oath for coders? (Score:2)
The real solution is to put a single drop of slow-acting mercuric neurotoxin on their cellphones. As long as they're not held responsible, they won't be responsive. But if they are held accountable, their successors will have learned a lesson.
Re:A hippocratic oath for coders? (Score:2)
First of all, the reason (some) judges aren't "held accountable" (by being appointed for life instead of elected) is to try to reduce the political influence on them. Second, if we poisoned all the Supreme Court Justices right now, we'd just end up with a court full of Bush-appointed replacements and be really screwed.
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:Alternative approach for ethical coders (Score:2, Informative)
Undermining your employer's patents is the kind of thing you're going to want to do anonymously in the first place. They're not stupid, and someone who does this to them is going to have a hard time finding employment if they know about it.
Since you're "liberating" the patent "technology" (and I use that term loosely), if you have to put a name behind it for lega
Re:Alternative approach for ethical coders (Score:3, Informative)
However, it's an entirely different matter if the idea originates from you - *instead of* giving the idea to the company in the first place and publish to OSS - just keep your mouth shut about your idea until you're at home.
This way it'll make it both ethical and legal.
Re:Alternative approach for ethical coders (Score:3, Interesting)
You're stating the obvious. We've already established that one who would engage in the act of "liberation" is opposed to software patents, so the question of ethics has already been addressed. Ethics have a communal aspect, but in the end they are highly personal. The things most people agree are completely wrong have been codified into law. "Ethics" are a much larger set that includes things
Oh please... (Score:2, Insightful)
The EU Patent office is not the diploma mill that the USPTO has become. And the USPTO itself was much more sensible until the 1980s when Reagan tried to turn it into a profit center.
There are legit software patents, the RSA algorithm for example is a non trivial piece of intellectual work. 98% of software, business model and genetic patents are unadulterated crap but that does not mean that there is no legitim
Re:Alternative approach for ethical coders (Score:2)
and cannot be solved that way.
"Prior art as a solution" is what the institutions want to make you believe.
The US debate focuses on prior art/novelty and obviousness/triviality. It is
a reason why they cannot fix it in the US. Two red herrings of patent reform
policy.
In Europe the patent system is in defense and the attempt Riordan decribes
are important to win grounds.
What we need is a strong US movement which is organised activists [ffii.org].
Re:Alternative approach for ethical coders (Score:2)
Re:A hippocratic oath for coders? (Score:2, Insightful)
Re:A hippocratic oath for coders? (Score:2)
That's ingenious! (Score:5, Funny)
Re:That's ingenious! (Score:4, Insightful)
Clearly "legal strategy" patents are essential - after all, without legal strategy patents lawyers couldn't own their own discover-... idea-.. inventions.
Then there would be no driving economic force behind legal innovation, and the entire legal industry would stagnate, retarding the progress of the Unites States/Europe and ensuring that legal development only took place in other countries...
No, wait-
Re:That's ingenious! (Score:2)
Re:That's ingenious! (Score:2)
Re:That's ingenious! (Score:3, Insightful)
The core of this "strategy" is as old as prostitution: Pay of politicians and judges, directly or indirectly. Giant Multi-National corporations have the money to corrupt those individuals, FOSS projects to not. Only a grassroots groundswell of massive protest can fight the money.
That means exposing every person associated with the "judical system" in question to see what their connection is to Microsoft.
Re:Actually they are copying the American Left (Score:2)
The reason why this works in the US is that the Right actually does exist, and had always existed. The judge is not declaring a "new right," just noting that it had not been legally abridged. This is due to the 9th and 10th Amendments:
But its still the same tactic, which is the point (Score:2)
Re:But its still the same tactic, which is the poi (Score:2)
No, I'm not missing the point. What I was saying is that using that same tactic may not work in Europe because it may not have an "unwritten penumbra" concept like the US does (and the US only has this concept because of the Amendments I quoted).
In other words, your tactic may not be applicable because the legal frameworks are different. This is especially true in the area of patents: in the US, patents exist "to promote the progress of science and useful arts," * while in Europe patents exist explicitly a
You're missing the point (Score:2)
My first EU software patent (Score:5, Funny)
And they still wonder? (Score:2, Interesting)
Well, the few of us that are even allowed to vote, that is.
Re:And they still wonder? (Score:5, Informative)
I'm not, in favour, generally, of extension of the the powers of EU instutions or the proposed EU constitution. However, surely if your state were to drop out of the EU, these trade deals would still happen but in an untransparent, unaccountable way with no parliament or constitution involved (and more likely to involve the receipt of nice pretty brown envelopes from everyone's favourite monopoly).
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:And they still wonder? (Score:3, Insightful)
Re:And they still wonder? (Score:2)
2. I disagree with both statements. What I imply on this subject is that the "average" moral values of the member states will vary. For instance, look at laws on abortion, drugs, imigration and such
Re:And they still wonder? (Score:2)
I agree the EU has accountability problems (as do many member states), but that doesn't mean
Re:And they still wonder? (Score:2)
Every people has the right of self-determination. The EU is an abrogation of that right. It can only justify itself, in the end, through the annihilation of its members. A body that is so purely autophagous is not long for this world, my friend.
"Eat the rich", the poor cried. "See your neighbor to the right? He's rich!" the Chairman of the Board ordered h
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
for the short-attention-span people: (Score:2)
Or don't read it at all.
If people want to use parts (or the whole thing verbatim) for their own fight against software patents; feel free to do so; it's under the CC licence.
Re:for the short-attention-span people: (Score:2)
There's more than one CC license; you should specify which one you're using.
Re:Time to dust off my software patent directive! (Score:2)
Remove the 'to' at the end. Let's get the grammar right if this is a formal letter.
Re:Time to dust off my software patent directive! (Score:2)
Thank you for pointing this out (I'm not native english). If you see other grammar/spelling mistakes, feel free to point them out.
But, ermm..you're really sure, right? I mean, it was not the verb 'answer' on itself that I wanted, rather something like 'to be hold accountable' for what they do. Is there another verb that may convey this better?
Re:Time to dust off my software patent directive! (Score:2)
Unfortunately I noticed probably over 20 other little grammatical or spelling errors in the letter also.
Re:Time to dust off my software patent directive! (Score:2)
In other words, it's BS.
Re:Time to dust off my software patent directive! (Score:3, Informative)
I'll explain why.
"To whom" vs. "to which": Most of the time, when you're refering back to a person or to a group of people, you should use "to whom". "To which" is used mainly used for objects, or animals. It's like the word "it". A rule of thumb: If you wouldn't use "it" as a pronoun, you shouldn't use "which".
"Have to answer to" vs. "accountable": Both are correct, but using "accountable" doesn't require as many words. Th
the missing part (Score:2)
Well...I thought it was long enough as it is, seen it was originally meant for a MEP to read
In fact some complain it's too long as it is (that's why I made a seperate page of the 'concusion' when I send it).
But anyway, regarding the history: I remember reading a research-paper where it was investigated if the 'innovation' was less in countries that had copy-right, compared to those that di
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.
Re:oh dear (Score:2)
Re:oh dear (Score:4, Interesting)
As usual, Stallman has a cogent argument (Score:2, Interesting)
http://www.gnu.org/philosophy/fighting-software-pa tents.html [gnu.org]
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 u
Re:As usual, Stallman has a cogent argument (Score:2)
Re:oh dear (Score:2)
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,
Re:oh dear (Score:2)
"If you cut out all the crap, you'd probably have a pretty good bunch of patents. I've yet to find a good logical paper that contrasts the pros and cons of software patents, and presents a good reason on why or not they should exist."
Good idea. Show me the good ones.
Patents and software patents are not much different, that is true. I do not aim to abolish the patent system at large. But I don't want them in software.
Re:oh dear (Score:2)
If software patents are bad, and software patents are not much different from "regular" patents, then all patents are bad.
So why not abolish all patents?
Re:oh dear (Score:2)
I need to do more research
Re:oh dear (Score:2, Interesting)
Re:oh dear (Score:2)
The algorithms haven't been used in software by anyone but me yet. My original plan was to release the software which instantiates them under the GPL.
Re:oh dear (Score:2)
Re:oh dear (Score:2)
Why would abandonment allow someone else to secure rights? Wouldn't it then just fall into the Public Domain, since an abandoned invention would still serve as prior art?
Won't work (Score:3, Interesting)
Re:Won't work (Score:5, Informative)
Those laws dont' do anything on their own though. Someone has to act upon them. First the executive arm of government and then the judiciary (if it reaches them) apply their interpretation to that law.
The EPO currently "interprets" Article 52 of the European Patent Convention [european-p...office.org], which states that only inventions are patentable and that programs for computers shall not be regarded as inventions, as meaning that programs for computers are in fact patentable. If they controlled the courts, they would have total power to enforce this "interpretation".
The law is irrelevant if the court chooses to intepret "black" as "white".
Re:Won't work (Score:3, Funny)
Re:Won't work (Score:2, Informative)
So, if the crucial inventive step is merely that something is being implemented as a computer program, it cannot be patented. The subject matter of the patent must be more than merely, "hey, it's now being done on a computer".
But, if the patent involved a softwar
Re:Won't work (Score:2)
Re:Won't work (Score:2)
Re:Won't work (Score:2)
You can't make this shit up.
Re: (Score:3, Informative)
Courts can "legislate" by interpretation. (Score:2)
Which is exactly how software patents were originally created, by lawyers and courts, in the US (as I, who ANAP(atent)L understand what happened.)
US law explicitly excluded "mathematical algorithms" from patentability. The patent office and the courts interpreted this to include programs (which are algorithms for performing computations involving arithmetic and boolean logic, b
Re:Won't work (Score:3, Insightful)
Re:Won't work (Score:2)
And just in passing, the executive branch of governments in common law countries has railed against "the abomination of judge-made law" since at least the time of James I/VI back in 1600 or so, and probably earlier.
Why worry? (Score:2)
Re:Why worry? (Score:2)
Re:Why worry? (Score:2)
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.
Re:Like Terrorists.... (Score:5, Insightful)
The other obvious thing to point out is that patents were made to advance civilization and promote progress - largely w/o protection of patents, look how far the computer software industry has advanced. I could make a good case this would not be so if patent were around raising the bar of entry (actually, look at Universities - they are the forebearers of progress and are, er, were mostly open in research). It becomes obvious then that the reason for software patents is not to promote progress, but to protect corporations (corporate protectionism). Any politicians considering this should just be thrown out immediately by their electorate. There is absolutely no excuse to promote them. They literally want to suppress the little guy without an extensive patent portfolio to "cross-license" with the big boys.
Socialism at it's best. History is repeating itself, types of government have ceased to matter (democracy, socialist, communist), corporations/money run the place.
Re:Like Terrorists.... (Score:2)
Corporations are persons.
Persons are animals.
Some animals are more equal than others.
Remember the Drug War. (Score:2)
Back in the '60s a LOT of people thought the same things would work on the drug laws (as they believed it had on alcohol prohibition). So they tried it.
Didn't work worth a damn.
Instead the US now has the largest percentage of population in prison of any country in the world. It has federal laws requiring long-term incarceration for drug offenders creating priso
Patents are bad! (Score:2)
Re:Patents are bad! (Score:2, Insightful)
But actually, the above statement is a lie to fool the naive. The reason it costs so much is that they can charge what the hell they like, and once the price goes higher than that, the demand falls.
Patents would be much better if there was some way to force patent holders to licence to anyone for reasonable fees.
Re:Patents are bad! (Score:3, Informative)
The drug companies need to recover enough money to support all their research -- including trials of the many compounds that just don't work out. And they also need to self-insure against liability should one of their products kill or maim a bunch of folks even after all the testing. Of course, the companies also make obscene profits and it wouldn't bother me or a lot other people much, if that part
Re:Patents are bad! (Score:4, Informative)
Drug companies need to recover enough money to support all of their marketing. [www.cbc.ca] Research budgets at drug majors are always considerably smaller than marketing budgets.
Bill Gates gets it (believe it or not)! (Score:3, Informative)
Bill Gates realizes that secrecy among scientists is slowing down aids research. As a condition for his funding of their aids research, he is insisting that they share their data. http://www.guardian.co.uk/aids/story/0,,1824606,0
In general, patents are being abused and are not fulfilling their original purpose. The people lobbying for patent protection for software are actually evil. They want to enrich a certain group of people at the expense of the rest of the world. When you see someone like Bill Gates acknowledging that, you know it has to be true.
I don't believe it (Score:2)
But they understand biochemistry, metallurgy, and electrical engineering, right?
If that's the problem, then the same problem applies to the other areas mentioned. Lawyers understand law, and society, and logic. The good ones also understand people. In general, they aren't too knowledgable about the sciences and engineering fields.
I used to think that patents were a good thing. I don't think so any
EPO cant overrule National High Courts (Score:2)
In brussels they have condemned ariel sharon as a war criminal. What happened ? If he is to step on belgian soil he is to be arrested - only belgium. thats what happened.
Re:EPO cant overrule National High Courts (Score:2)
Re:We are talking EU vs EU citizens (Score:2)
The European Parliament may be decisive again (Score:4, Informative)
The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence
That is not necessarily correct. The first procedural question to be clarified concerning the EPLA [no-lobbyists-as-such.com] is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.
I have already predicted in my blog [no-lobbyists-as-such.com] that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).
If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union [no-lobbyists-as-such.com] discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.
Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.
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
hear, hear! (Score:3, Insightful)
What we *should* be doing is being more pro-active, and try to get a law passed (or at least proposed) which would unify the patent law (which, on itself, is a good thing), but which explicitly forbids patents on software.
We can never win on the long run, if we only defend, and the megacorps keep attacking: WE have to be pushing forwards with our goal as
Re:Egad (Score:2)
Re:Egad (Score:2)
Re:Egad (Score:2)
I'm not entirely sure what your point is. Whether the party groups whipped their members to vote against software patents is irrelevant, as the vast majority of parliament voted agai
Re:Egad (Score:2)
Re:Egad (Score:3, Funny)
I would genuinely be abhorred if this were to actually happen.
Why? Is it your fault?
Re:Egad (Score:2)
Re:Step back a moment (Score:2)
I do prefer our "first to invent" as opposed to your "first to file" system, even if it is harder to sort out when a dispute arises.
You'd better write your rep... There's a bill pending that will switch this. I'm sure all the major software companies are eagerly waiting to start searching GPL code for patentable trinkets. They probably already have targets chosen.
If you can't beat free, and you can't make free illegal... Then patent stuff in it that you didn't invent, and tie it up for 18 years.
Re:Step back a moment (Score:2)
Re:Step back a moment (Score:2)