From MAILER-DAEMON Fri Aug 30 13:09:45 2002 Date: 30 Aug 2002 13:09:45 +0100 From: Mail System Internal Data Subject: DON'T DELETE THIS MESSAGE -- FOLDER INTERNAL DATA X-IMAP: 1030709385 0000000000 Status: RO This text is part of the internal format of your mail folder, and is not a real message. It is created automatically by the mail system software. If deleted, important folder data will be lost, and it will be re-created with the data reset to initial values. From jri@jriddell.org Wed Aug 7 15:45:53 2002 +0100 Status: R X-Status: FA X-Keywords: Received: from dosh.cs.stir.ac.uk by cash.cs.stir.ac.uk (8.8.5) with ESMTP id PAA00989; Wed, 7 Aug 2002 15:45:52 +0100 (BST) Received: from smtp-relay1.noc.dsvr.net by dosh.cs.stir.ac.uk (8.9.3) with ESMTP id PAA24895; Wed, 7 Aug 2002 15:45:49 +0100 (BST) Received: from [212.69.204.14] (helo=quaker.dsvr.co.uk) by smtp-relay1.noc.dsvr.net with esmtp (Exim 3.34 #1) id 17cS4K-00033X-00 for jri@cs.stir.ac.uk; Wed, 07 Aug 2002 15:45:48 +0100 Received: (from admin@localhost) by quaker.dsvr.co.uk (8.11.6/8.11.6) id g77Ejj731614 for jri@cs.stir.ac.uk; Wed, 7 Aug 2002 15:45:45 +0100 Received: from bartu.bos.a2e.de (bitmu.a2e.de [62.154.243.66]) by quaker.dsvr.co.uk (8.11.6/8.11.6) with ESMTP id g77EjiG31606 for ; Wed, 7 Aug 2002 15:45:51 +0100 Received: from mulix.oas.a2e.de (mulix.oas.a2e.de [10.0.0.122]) by bartu.bos.a2e.de (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id QAA18666; Wed, 7 Aug 2002 16:44:02 +0200 Received: (from phm@localhost) by mulix.oas.a2e.de (8.11.3/8.11.3/SuSE Linux 8.11.1-0.5) id g77F0DW03124; Wed, 7 Aug 2002 17:00:13 +0200 Date: Wed, 7 Aug 2002 17:00:13 +0200 Message-Id: <200208071500.g77F0DW03124@mulix.oas.a2e.de> X-Authentication-Warning: mulix.oas.a2e.de: phm set sender to phm@a2e.de using -f From: PILCH Hartmut To: Jonathan Riddell Cc: patents@aful.org Subject: Bolkestein letter on swpat X-Spam-Status: No, hits=0.0 required=5.0 tests= version=2.20 At http://jriddell.org/eu-patents-letters.text you published a recent reply by Frits Bolkestein to an inquiry about the directive proposal. I wonder whether you are aware of the analysis at http://swpat.ffii.org/papers/eubsa-swpat0202/ which preempts much of what Bolkestein answered. Let me cite the answer and add a few comments. From Frits Bolkenstein (European Commission, Dutch) via Ian Hudghton (SNP MEP) 16 April 2002 Thank you for your letter dated 6 march 2002 in which you ask for comments on an e-mail from one of your constituents concerning the proposal for a Directive on the patentability of computer-implemented inventions which was adopted by the Commission on 20 February 2002. Your constituent seems to have misunderstood the purpose of the proposal and the legal background against which it operates. It is not correct that software patents are `banned under the previous copyrights and patents directive'. The only Community level legislation in this area existing to date is the directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs. However this Directive concerns only copyright law and has no effect on the law of patents. The situation concerning patents in the member States is governed principally by the European Patent Convention, which is an international treaty completely separate from the Community. This provides that computer programs `as such' are not patentability, but legal decisions over the 25 years that the European patent system has been in operation have found that this exception does not extend to processes carried out by computers which have a technical character. "legal decisions" ... a nice way to describe the EPO caselaw which Bolkestein is proposing to legalise. The proposal was adopted by the Commission following an extended period of consultations going back several years. A very wide range of views was received and taken into account during that process. No, they have not. 90% spoke against the kind of evident idiocy which Bolkestein wants to legalise, and many of these 90% had relevant arguments, while the 10% had no argued positions of their own, only patent mantras and applause for the commission. The 90% opponents had no impact on the decisions of the commission, except perhaps on Art 4, which is treated as a formality by the directive. The conclusion that Commission came to was that there should be no extension of the scope of patentability to cover computer programs as such, but that the law should be harmonised largely on the basis of current practice in that interests of legal certainty and transparency, and to eliminate certain divergences which had arisen as national courts interpreted the Convention. As we know the "current practise" of the EPO has extended the scope of patentability to make computer programs, mathematical methods and business methods as such patentable, and the results are not siginificantly better or different from those of the USPTO. The proposed directive will make this legal and binding. Thus, the proposal will not make anything patentable which was not already patentable. It makes patentable what hitherto was only patented illegally, and it makes it impossible to refuse such patents or to go back to a more sensible practise in the future. In particular, mathematical algorithms cannot and will not be protectable under patent law. They are, according to what Bolkestein considers to be a valid "legal decision", already patentable and patented en masse. Also, the term "mathematical algorithm" is nonsensical. It supposes that some algorithms are non-mathematical. But even if you assume a naive separation between numbers and symbolic entities and say that purely numeric algorithms are "mathematical" and symbolic ones are not, then this directive proposal allows the patenting of mathematical algorithms as such. Moreover, in one important respect, the Commission has decided that current practice goes too far and the proposal would provide that so-called `program product claims' whereby the protection conferred by a patent can extend to computer programs in isolation, should no longer be allowable. Even without such claims the "protection" proposed by CEC/BSA extends to a program in isolation. In these circumstances, it is difficult to see how the Directive will increase the regulatory burden on businesses. As regard your constituent's other point, I can assure you that the Directive text was prepared by the services of the Commission, and that neither the Business Software Alliance nor any other organisation or individual was given privileged access during that process. I am aware that a supposedly `leaked' draft of the text has been reported to bear the name of a member of the BSA's staff, but no credibility can be given to this story since the data field in question associated with a Microsoft Word document can very easily be modified at any time by anybody with `write' access to the file. It could of course be that the government officials who received the leaked draft conspired to add the name of Mingorance into the document and then handed it to us in order to create a scandal. But I don't think they would do that, and apart from that, the traces of BSA can be found quite clearly in the proposal. Saying that nobody was granted privileged access is also in contradiction to the CEC's current practise of letting itself be represented by the EPO in the ministerial council. It is clear that the EPO is a faction in this game, that this faction has privileged access to DG Internal Market, and that this faction has a Standing Advisory Council (SACEPO), which is again a factional organisation in which only the patent lobby is represented. Bolkestein seems to be telling us fairy tales. The adoption of the proposal is of course not the end of the story. The council and the European parliament now need to decide upon their position on this issue. Frits Bolkestein ------------------------------------------- From `Lord' Inglewood (Tory MEP) 21 June 2002 Thank you for your letter about the proposed EU directive on the patentability of computer implemented inventions. Your concerns were forwarded to me by Struan Stevenson as I am the Party's Spokesman on Legal Affairs, the Committee responsible for this piece of legislation. As you will no doubt have gathered, the legislation in question is complicated and has given rise to much misunderstanding, leading to many people being wrongly informed about the Proposal. The proposal for this directive is not intended to allow the patenting of software which is not currently patentable, and equally significantly, now have earlier EU Directives specifically banned software patents. The law on what is patentable is governed by the European Patent Convention (EPC). This expressly excludes from patentability both business methods and `software as such' (but not technological innovations involving software for example in the controlling of mechanical tools). This reflects the traditional position, which i that patents are for technological innovation. Thousands of patents have been granted by the European Patents Office and by member States' national patent offices for computer-implemented inventions The UK Patent Office estimates that perhaps 15% of the patents it grants are software related. Many of these patents are n the core areas of information technology, i.e. digital data processing, data recognition, representation and storage, as well as inventions involving programs which control processes in fields such as automotive and mechanical engineering. The background to the Directive is that the law on how far software is patentable has become unclear. it is governed, as i have already mentioned, by the European patent Convention (EPC), which is over 20 years old, during which time the technology has of course advanced enormously. None of these unclarities are in any way related to advances of technology. It is quite disappointing to see Lord Inglewood make himself a parrot of this kind of crap. Judicial and patent office efforts in the various EPC member countries to determine exactly which inventions involving software should be patentable have produced different results. The result is widespread uncertainty. The uncertainty arises from the fact that some, including the UKPO, want software patents and claim that the law allows them. The price for this claim is of course that the law becomes a pile of meaningless words. This kind of law interpretation can not be admissible. Because the swpat propagandists know that, they want to change a law which has become embarassing to them.a Both the UK Government and the Commission conducted consultations in the autumn of 2000. You refer to the Government's conclusions of the UK consultation on software patents, available at http://www.patent.gov.uk/about/ippd/consulation/closed/index.htm As the consultation showed, there are significant differences of opinion among the public, and business. Although almost nobody disputed the need to clarify the law, there was disagreement about what is should say. Broadly there were three schools of thought: 1) That, as in the US, software should be patentable even where there is no technological innovation, so as to encourage the spur to innovate that patents provide (from some patent agents and a small minority of companies) 2) That software should not be patentable - supporters (mostly individuals) pointed to the growth of `Open Source' software in recent years, whereby, broadly, software is made available on condition that no restrictions are places on its use by others; This again is an attempt at confusing issues. Open source software is characterised by the renouncement of copyright privileges, not of patents. Also, the anti-swpat position is held by lots of people and companies who engage in writing proprietary software. 3) That the technical effect test is right - (a view held mostly by companies and representative boards) it would not make sense to deny a patent to an invention implemented in software when one would be available to an invention achieving the same thing but implemented in hardware. This means that anything can be patented, because anything can be implemented in hardware. Indeed "implementability in hardware" has never been a criterion. The criterion has been whether there is a new teaching about causality of forces of nature rather than merely a new logical rule based on known models. The central conclusion was to reaffirm the principle that patents are for technological innovation, so that software should not be According to Lord Eaglewood (his position is in fact that of the UKPO), anything is technological innovation. So patents must be available for all rules of organisation and calculation. patentable when there is no technological innovation, and that technological innovation should not cease to be patentable merely because the innovation lies in software. However, there is a need for the law to express this more clearly, and for this clarification to take place as soon as practicable. Methods of doing business should remain unpatentable. This means that business methods are patentable. Why should they be unpatentable just because they are not implemented in hardware? Since then the Commission has proposed a Directive which reflects this view. The stated purpose of the proposal they have published is to harmonise and clarify the law on the basis of the existing position. The Proposal is close to that of the UK policy. The UK Patent Office has invited comments from those who responded to the UK consultation in 2000, a copy of the invitation to comment, and links to the Commission proposal can be viewed on the Patent Office website at: http://www.patent.gov.uk/about/consultations/written/econsult16.pdf I do hope that is helps to answer your question. if you have any more questions please do not hesitate to get back in touch with my office. Why should the practise of the patent office have any weight in determining what is patentable and what not? On the UK situation, see also http://swpat.ffii.org/players/uk/ It is nice of Mr. Eaglewood to have obtained a response from Mr. Bolkestein. Apart from that the reluctance of politicians to use their brain and their willingness to undermine basic freeedoms without even insisting on any macro-economic benefit, and to victimise minorities such as software developpers is quite appalling. There is a nice quote which fits here: http://internet.ggu.edu/university_library/if/Niemoller.html In Germany they came first for the Communists and I didn't speak up because I wasn't a Communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I was a Protestant. Then they came for me--and by that time no one was left to speak up. * Mr. Eaglewood should speak up for freedom even though he is not a programmer. -- Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-12789608 Protecting Innovation against Patent Inflation http://swpat.ffii.org/ 120,000 signatures against software patents http://www.noepatents.org/ From jri@jriddell.org Fri Aug 9 20:01:52 2002 +0100 Status: R X-Status: X-Keywords: Received: from dosh.cs.stir.ac.uk by cash.cs.stir.ac.uk (8.8.5) with ESMTP id UAA23027; Fri, 9 Aug 2002 20:01:52 +0100 (BST) Received: from smtp-relay1.noc.dsvr.net by dosh.cs.stir.ac.uk (8.9.3) with ESMTP id UAA23372; Fri, 9 Aug 2002 20:01:51 +0100 (BST) Received: from [212.69.204.14] (helo=quaker.dsvr.co.uk) by smtp-relay1.noc.dsvr.net with esmtp (Exim 3.34 #1) id 17dF1B-0001jh-00 for jri@cs.stir.ac.uk; Fri, 09 Aug 2002 20:01:49 +0100 Received: (from admin@localhost) by quaker.dsvr.co.uk (8.11.6/8.11.6) id g79J1kY21883 for jri@cs.stir.ac.uk; Fri, 9 Aug 2002 20:01:46 +0100 Received: from bartu.bos.a2e.de (bitmu.a2e.de [62.154.243.66]) by quaker.dsvr.co.uk (8.11.6/8.11.6) with ESMTP id g79J1lb21867 for ; Fri, 9 Aug 2002 20:01:47 +0100 Received: from mulix.oas.a2e.de (mulix.oas.a2e.de [10.0.0.122]) by bartu.bos.a2e.de (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id UAA27138 for ; Fri, 9 Aug 2002 20:59:55 +0200 Received: from localhost (phm@localhost) by mulix.oas.a2e.de (8.11.3/8.11.3/SuSE Linux 8.11.1-0.5) with ESMTP id g79JGOR09508 for ; Fri, 9 Aug 2002 21:16:24 +0200 X-Authentication-Warning: mulix.oas.a2e.de: phm owned process doing -bs Date: Fri, 9 Aug 2002 21:16:24 +0200 (CEST) From: PILCH Hartmut X-X-Sender: To: Jonathan Riddell Subject: Re: Bolkestein letter on swpat In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII X-Spam-Status: No, hits=-4.4 required=5.0 tests=IN_REP_TO version=2.20 > Thank you very much for your reply. As you can probably tell from the > letters from Fritz Bolkenstein and Inglewood the origional letter wasn't > brilliantly researched. I shall try to take more efford over the replies. Your approach to pursuing this matter is very helpful indeed, since you were able to obtain replies. Even if Bolkestein was represented by a ghostwriter, we can make use of this. Maybe your MP could write another letter that asks more specific questions. Also to Mr. Inglewood or Ms McCarthy, see http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0206/ One thing to ask them is to present them a list of patents, specially horror patents granted by the EPO and/or UKPO, and ask them whether these, according to their lingo, are "computer-implemented inventions" with a "technical contribution" or whether they are "computer programs as such" or "mathematical algorithms", and, if so, why. See http://swpat.ffii.org/analysis/testsuite/ > Your help is very much appreciated. I'll be glad to look through any letters. -- Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-12789608 Protecting Innovation against Patent Inflation http://swpat.ffii.org/ 120,000 signatures against software patents http://www.noepatents.org/ From jri@jriddell.org Fri Aug 23 11:57:17 2002 +0100 Status: R X-Status: X-Keywords: Received: from dosh.cs.stir.ac.uk by cash.cs.stir.ac.uk (8.8.5) with ESMTP id LAA05386; Fri, 23 Aug 2002 11:57:11 +0100 (BST) Received: from smtp-relay1.noc.dsvr.net by dosh.cs.stir.ac.uk (8.9.3) with ESMTP id LAA02469; Fri, 23 Aug 2002 11:57:10 +0100 (BST) Received: from [212.69.204.14] (helo=quaker.dsvr.co.uk) by smtp-relay1.noc.dsvr.net with esmtp (Exim 3.34 #1) id 17iC7p-0006Uz-00 for jri@cs.stir.ac.uk; Fri, 23 Aug 2002 11:57:09 +0100 Received: (from admin@localhost) by quaker.dsvr.co.uk (8.11.6/8.11.6) id g7NAv8Y08902 for jri@cs.stir.ac.uk; Fri, 23 Aug 2002 11:57:08 +0100 Received: from bartu.bos.a2e.de (bitmu.a2e.de [62.154.243.66]) by quaker.dsvr.co.uk (8.11.6/8.11.6) with ESMTP id g7NAv8c08898 for ; Fri, 23 Aug 2002 11:57:08 +0100 Received: from mulix.oas.a2e.de (mulix.oas.a2e.de [10.0.0.122]) by bartu.bos.a2e.de (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id MAA32630; Fri, 23 Aug 2002 12:53:03 +0200 Received: (from phm@localhost) by mulix.oas.a2e.de (8.11.3/8.11.3/SuSE Linux 8.11.1-0.5) id g7NB9pJ02994; Fri, 23 Aug 2002 13:09:51 +0200 X-Authentication-Warning: mulix.oas.a2e.de: phm set sender to phm@a2e.de using -f Sender: phm@a2e.de To: alan@lxorguk.ukuu.org.uk (Alan Cox), Ross.Anderson@cl.cam.ac.uk (Ross Anderson), cb@fipr.org (Caspar Bowden), chris@thoday.demon.co.uk (Eur Ing Christopher Thoday), epa98@doc.ic.ac.uk (Edward Avis), phil@hands.com (Philip Hands), rrw@semiramis.org.uk (Richard Watts), pete.chown@skygate.co.uk (Peter Chown), tim@timj.co.uk (Tim Jackson), tim@mollymoo.f9.co.uk (Tim M), Ben@newview.co.uk (Ben Moxon), gervase.markham@university-college.oxford.ac.uk (Gervase Markham), Jim Peters , Alex Hudson , Simon Ashby , richard hillesley , Jonathan Riddell Cc: xdrudis@tinet.org (Xavier Drudis Ferran), erikjosefsson@telia.com (Josefsson Erik), jp@smets.com, bernard.lang@inria.fr, Luuk.van.Dijk@xs4all.nl (Luuk van Dijk), rms@gnu.org Subject: UK Patent Family and Software Patents update From: PILCH Hartmut Date: 23 Aug 2002 13:09:51 +0200 Message-ID: <87bs7tygow.fsf@mulix.oas.a2e.de> Lines: 54 User-Agent: Gnus/5.0808 (Gnus v5.8.8) Emacs/20.7 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Spam-Status: No, hits=0.0 required=5.0 tests= version=2.20 Hi everybody, Here are some short news from the UK Patent Family watch page http://swpat.ffii.org/players/uk/ - UK representatives in IP workgroup of European Council as always at the forefront of promoting software patentability, pushing also for legalisation of "program product" and "program" claims. - writings by influential british MEPs Arlene McCarthy (Labor) and Lord Inglewood (Tory) display wholesale adoption of UKPO positions and hostility toward the critics of software patents - Meanwhile, some british MPs and MEPs are more or less on our side, but none has signed the http://swpat.ffii.org/papers/eubsa-swpat0202/demands/ One british MP agreed to present a list of questions to the government. We could work on those. It seems in general that writing and speaking individually to MPs and MEPs is very useful particularly in Britain. Every such action has so far led to some positive result so far. Please engage an MP/MEP and report to us about it. - Improved presentation of UKPO Doublespeak at http://swpat.ffii.org/players/uk/#duobl This text piece should be entertaining and useful for making people understand what is being played. - Detailed counter-proposal to the CEC/BSA proposal http://swpat.ffii.org/papers/eubsa-swpat0202/#prop is at the heart of our strategy. Please read it and explain it to people. Thanks for investing energy in this. The other side may look very strong, but I think chances of winning this battle are very good compared to most other IP related battles. Greetings -- Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-12789608 Protecting Innovation against Patent Inflation http://swpat.ffii.org/ 120,000 signatures against software patents http://www.noepatents.org/