Campaign against software patents | CatalàCampaign against software patents | Català
The Juridical Committee in the European Parliament has presented an study on software patentability by Reinier Bakels and P.Bernt HugenHoltz. The study is part of the work of the committee on Legal Affairs and Internal Market of the European Parliament, that is the one in charge of the software patentability directive COM(02) 92.. We have sent this comments on the study to the web forum of the committe [12], that is open to everyone to discuss the directive.
There are also more elaborated comments in the same line from FFII.
Nice to see that finally official reports recognize problems with software patents, and there are a few good points in the study, although it isn't 100% right. At least, and this is refreshing news, it is readable and plays no word games and sophistry, as was the norm with DG Internal Market sponsored studies.
In general one can imagine that the authors see more than they say, but shy away from criticising institutions too much.
Although we'll see some weak points later, the study is a better basis to build on than any other official document, and therefore it is very much wellcome.
For the more important points see "Key points" below
I like the perspective that patent law is economic law, and there is no moral justification for it, nor are patents a natural right of inventors. This is very basic, but is often ignored by the Comission reports, or simply by ordinary people. It is very appropiate to state it as a reminder.
It clearly explains (3.6) that the TRIPs agreement does not impose software patents, and that is good too, since some pretend TRIPs to have already decided our policy for us.
It also recognizes (4.1) that prosperity of the software business is not a consequence but a cause of extension of patentaility to software. That is true indeed. Microsoft is often cited in worse studies as having hundreds of patents and having done well, but they never say MS grew without patents and has only started using then strategically when it was large and wanted to keep its monopoly. In fact in 4.5, when it says:
This is not the place to speculate about possible strategies of commercial software vendors, but if they would be able to compete using legal means such as the patent system, there is no guarantee they would not do that.
It misses the recent (barely before the date of the document) news from Microsoft in which they plan to assert patents on free software compatible with their CIFS specification for sharing files and printers in a network [6]. This is a clear example of their strategic use to keep their monopoly.
It further states (4.3.1) that software innovation exists without the incentive of patents, and therefore software patents are unnecessary and counterproductive.
It shows some of the weak points of the COM(2002) 92 directive proposal, like the fact that the technical contribution requirement in the directive is meaningless (5.2).
It denounces patent inflation (6.2), although it attributes it only to trivial patents. Trivial patents are indeed a seriuos problem, and should be dealt with before any extension of the patent system (and before the EPO is granted new powers with the Community Patent). But this is not the only problem, and they ignore the inflation caused by exporting the patent system to fields where it does not belong.
The Observatory they propose (6.3) it's very similar to the supervisory committee in the Eurolinux demands [1]. This idea should be worked on.
We also generally agree on section 6.4. And most of the other points not explicitly commented are useful.
Some points are not very well informed:
It rightly emphasizes the problems of software patents for SMEs, but fails to note that most software jobs are in SMEs. We don't have the data handy for Europe, but statistics for Catalonia, say that 2/3 of employees in firms with more than 10 workers, in information and communication technologies, work in firms with less than 200 workers [2]. These companies would be very damaged if the directive is approved. If the same proportion holds for Europe (as is likely) then saying simply (4.2.2) "The software industry is very diverse. Again, generalisations should be critically examined" is correct, but fails to note the majority of workers would suffer from software patents.
It tends to downplay studies on the subject. Most economics analyses are against software patents. Of course they can't be absolutely certain of the outcome of all the possible scenarios, but in a field where direct experimentation is not possible, all we have to decide are these informed and rational speculations. We should assess them critically, but not simply discard them as unconclusive.
Furthermore, section 4.1 downplays consultations too. "Apparent majorities may or may not be meaningful" it says. In the Comission's consultation, for example, by reading some hundreds of replies [4], and then the study of replies to the consultation, it is plain to see it was not fair [5]. Although the study does not reflect the replies, it shows more than 90% of respondents were against software patents. This is not an "apparent majority", it is not even simply "widely varying opinions" it is an overwhelming near-consensus. The study might not be a statistical significant sample, but neither it was a sample of only software patents opponents. In fact the organizers were pro software patents, and the consultation was equally open to everyone. It is hardly democratic to minimize these results so. After all we don't leave empty seats in Parliament just because abstention rate is higher that we'd like.
Section 3.1 fails to note the traditional distiction between copyright and patents. They were not meant to overlap. Certainly you can devise a system like in the US where software can get both patents and copyright, but then software would be the only work covered by both forms of property, and patents being a stronger property would erode the protection offered by copyright. The study recognizes implicitly the potential for those damages (SMEs prefering copyright and being threatened by patents that they could inadvertedly infringe and then being unable to exploit their copyrighted original work), but then assumes that both can coexist for the same subject matter.
Section 4.3.1 is generally shy, in that it shows compelling reasons to believe software patents do not help innovation, and instead stiffle it, but concludes only that " [the stiffling innovation] may be true as well". Here it also misses one clue: the fact that free software is an increasing and powerful phenomenon shows that not only the software market has enough incentives to innovate without patents, but that it has also enough incentives to disclose inventions in a vastly more useful way for this particular field than patents in inconvenient repositories: with publically available documentation and source code in the internet, that not only explains the invention, but allows anyone to directly test and use it, and any person skilled in the art to modify to adapt it to their needs (not merely reproduce it from scratch like patents do).
Section 4.5 shows terminologically that the author is not very familiar with free software, when it opposes "open source" to "commercial software". You can have any combination of commercial or non-commercial, gratis or priced, "open source" or "closed source" software. Clearly much "open source" software is commercial, and many companies live on it.
When section 5.2 comments in the directive, it is a little too soft on the important problems it finds. The directive explanatory memorandum is full of pro software patent propaganda and dogma, with litle rational discourse. For a better critique of the directive see [7]. The authors possibly had not studied this critique in detail, but that is not clear because they don't cite it, only speak of "early reactions to the proposal [...] from the Open Source Software movement and its supporters.". In fact Eurolinux is one of the most active opponents of the directive, and it is an alliance by both "open source supporters" and hundreds of organisations and companies, including clearly not open source companies.
In this section 5.2, and specially in section 7:
Given these uncertainties, it would be more appropriate to concentrate on legal security and harmonisation of law than to contemplate major substantive changes in patent law. This is indeed the route chosen by the European Commission in the proposed Software patent directive, even though the explanatory memorandum accompanying the proposal suggests that software patents are good for the European economy.
I get the impression that the directive has not been fully understood. The directive carefully sets several provisions to avoid any software being not patentable and forces courts to uphold substantive changes in patent law that have been slipping through currently unenforceable EPO case law. The "technical contribution" requirement is only a dodge, because the directive defines software as being a technical field. Therefore any software contribution is technical and any software is patentable. In fact, when we tried to imagine amendments, we saw that by ammending only a few articles, the directive would still apparently allow for any software patents.
Any one of these tricks alone would probablly suffice to allow for unlimited patentability:
The excuse that the meaning of "technical" is likely to evolve is an excuse for passing a directive that instead of defining in a general way what is patentable and what isn't, leaves free way to the EPO to decide on its own and forces courts to uphold any patents. This form of anarchy hardly needs a directive. The fact is that precise definitions of "technical" exist [8], have been used in the past, and are still useful and applicable if one cares to try to tune the patent system for the benefit of society. The change in technology does not affect philosopical categories like matter and mind, information and physics, and those can be used to build a persistent framework that is relevant today as it was in the seventies.
Also, there's somewhere a reference to patents being good for SMEs to raise venture capital. This is (if at all [3]) a temporary effect that will vanish as soon as investors realise that software patents are no good for SMEs and that they are not a stamp of technical excellence, as the EPO itself admits [11].
The study fails to see a delimiting criterion for patentable subject matter, and surrenders to its own inability, ignoring traditional distinctions that are well rooted in philosophy, stand the pass of time and simply work.
It focuses the problem on trivial patents. This is a huge problem, but not the only one, and we must not let this one hide other problems. Specially because the trivial patents do not have an easy solution [9].
In fact the solution lies in combining technicity and novelty in a way, as it used to be the case in the EPO examination guidelines of 1978 [10]. Clearly an innovation should not be patentable or unpatentable depending of the drafting of the claim wording. We must look beyond words into meaning and ask whether the application teaches new insights into the use of controllable natural forces for a predictable result. It is not enough that the invention is new and it has physical effects. The physical effects must be new, we should not allow patents on new uses of already existing machines such as computers, whatever electrical currents or effects their peripheral devices have on the physical world. If the innovation lies in logics and calculation to achieve effects through a known machine and known peripherals, using natural forces in known ways, the fact that the effects are new is not sufficient, because we get no new insight in technical matters, just a new application of already available knowledge.
This criterion enforces the rule that any new discovery that "only" needs rational thought would appear sonner or later and does not need monopolies on ideas as an incentive, and risks putting any rational being (specially computer users) under infringement, while those inventions that require empirical observation of the physical world are likely to require experimentation, laboratories and infrastructure, maybe would not be possible without important incentives as patents, and can only be infringed by those manufacturing (or commercially using) patented inventions.
Remember that the important effort in software (and any information, logic or business innovation) is not having the idea that gets patented, but writing the code (or building the business, etc.) that implements it and getting it to work. This is already protected by copyright (at least for software) and does not benefit from patents. On the contrary, creativity would suffer from the artificial scarcity of ideas that patents create.
Please see the references for better explanations of the vital concept of the technicity criteria to apply. A proper application of this criteria would not solve the trivial patent problem, but would make things much more predictable, would introduce legal certainity, would reduce issued patents by only 3% and would avoid much of the sensation that some patents should never have been granted.
Even with no trivial patents, software patents would be harmful. Because software is only information, and patenting any form of information quickly leads to patenting all forms, and incurs in a basic contradiction:
Patents are monopolies in the use of some machine in exchange for publication of information on that machine. When the machine becomes software, and therefore machine=information, patents collapse in "monopolies in the use of some information in exchange for publication of information". So we are allowing people to monopolise information in exchange for publishing information that cannot be used because is monopolised. The fact that publication equals manufacturing in software (and other logical creations) makes patenting software (and all other logical achievements) absurd.
So the basic difference that distingueshes software from other fields is that it is information. The study fails to see that, because this line does not only separate software from mechanical engineering, but also excludes other logical achievements from patentability (like VHDL hardware (that is designed by feeding logic programs to a machine that builds the hardware), business methods, social interactions, etc.) .
The study keeps stating that no criteria can distinguish desirable form undesirable software patents, but the criteria exists (teaching new uses of controlable physical forces to achieve a overseeable result). This allows for desirable "software" patents, like for example a chemical engineering process that needs certain changes in pressure and temperature controlled by a computer, when there was not previously known that those changes obtained the desired effects. The fact that a program controls the process does not mean that the process is not patentable. We would not be patenting software as such, but a technical invention that happens to use a program. Everybody would be free to use the same program concepts (respecting copyright if any) for other purposes (like a virtual simulation of the process), but they would infringe when performing the chemical process with real machinery and substances. This is the useful meaning of the clause "as such" in EPC art 52, you cannot patent software as such, but can patent inventions that include software when the innovation is not in information but in the material world. Thus, a program alone, on a carrier, in transmission, working on a conventional computer, or otherwise would not infringe. It is not enough to take a conventional computer, argue that it uses electrical currents or known devices in known ways and pretend that that allows patenting any program when the application is properly drafted.
The study has not understood this delimiting criteria for patentability and therefore infers unlimited patentability from a difficulty in defining software.
[1] Caliu and Eurolinux demands
http://swpat.ffii.org/papers/eubsa-swpat0202/demands/
[2] Statistics on information and communication
technology market from the Generalitat de Catalunya
http://dursi.gencat.es/generados/catala/recerca/noticia/1041_12_6480.html
[3] Converting Capital Into Software That Works. Joel
Spolsky
http://www.joelonsoftware.com/articles/fog0000000074.html
[4] Archive of some ( aprox 1400) of the consultation
replies:
http://petition.eurolinux.org/consultation/index_html
[5] Analysis of the Comission consultation
http://swpat.ffii.org/papers/eukonsult00/
[6] On Microsoft trying to damage free software
interoperability on CIFS
http://swpat.ffii.org/patents/effects/cifs/
http://www.advogato.org/article/453.html
http://msdn.microsoft.com/library/default.asp?url=/library/en-us/dnkerb/html/Finalcifs_LicenseAgrmnt_032802.asp
[7] Analysis of the directive proposal
http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/index.en.html
[8] Definition of "technical"
http://swpat.ffii.org/analysis/invention/ http://swpat.ffii.org/analysis/
Dispositionsprogramm decision by the German Federal Court
http://swpat.ffii.org/papers/bgh-dispo76/
[9] Why software patents are trivial ?
http://swpat.ffii.org/analysis/trivial/
if it doesn't work, try
http://swpat.ffii.org/stidi/frili/indexen.html
[10] EPO Guidelines of 1978
http://swpat.ffii.org/vreji/papri/epo-gl78/
[11] Patents not a stamp of technical Excellence.
EPO.
http://www.european-patent-office.org/epo/facts_figures/facts2000/e/5_e.htm
[12] WEB forum of the Legal Affairs and Internal Market
committee of the European Parliament.
Topic number 6 starts the discussion on software patentability and the
proposed directive.
http://www1.europarl.eu.int/forum/mi/dispatch.cgi/opendisc