By Ingrid Marson, 7 March 2005 16:25
NEWS
The European Council adopted the software patent directive on Monday, despite requests from Denmark, Poland and Portugal to reject it.
An EU Council spokeswoman said on Monday morning that the Computer Implemented Inventions Directive had been adopted but was unable to give more details.
According to Florian Mueller, an anti-patent campaigner who watched the public part of the meeting, a minister from Luxembourg said the directive is being adopted to ensure that the Council adheres to its processes and to avoid creating problems for other directives.
"We are adopting the position for institutional reasons so as not to create a precedent which might have a consequence of creating future delays in other processes," the minister said, according to Mueller.
Last week it was reported that Denmark would attempt to have the directive listed as a B-item, rather than an A-item, allowing the text to be renegotiated. The Luxembourg minister admitted that Denmark, Poland and Portugal would have preferred the directive to be listed as a B-item, according to Mueller.
The directive will now be passed to European Parliament, which can reject or amend the proposal, for a second reading.
The Foundation for a Free Information Infrastructure (FFII) accused the EU Council of ignoring the views of both the national parliament that spoke out against the directive and the European Parliament, which demanded that the directive be restarted.
"This is a very sad day for democracy and casts a very dark shadow over the European Constitution, which will give the Council even more power," said the FFII in a statement.
Mueller agreed that the Council's decision was "undemocratic". He said that getting the Parliament to reject or amend the proposal could be difficult.
"The hurdle is very high as we need an absolute majority of every member of parliament, which means 367 MEPs for every amendment to the directive," said Mueller.
Hugo Lueders, the director of public policy at pro-patent organisation CompTIA, said he is pleased the Council has adopted the directive. He claims software patents are needed to ensure that the EU can keep to the goals set by the Lisbon Agenda - that the EU will become the world's most competitive and dynamic knowledge-driven economy by 2010.
"We think this directive is overdue," said Lueders. "It's extremely urgent to proceed with the Lisbon Agenda, of which this directive is a key element."
Comments
There are 6 comments. Join the discussion
1. Carl Maycock
How will Europe become the most competitive and dynamic knowledge based economy in the world when right from the start the majority of important patents are held by American companies, MS,IBM, HP etc ? Europe had a unique opportunity to avoid the inevitable patent nightmare of cross licensing, unintended patent infringement and a whole host of issues regarding open source. We are now reaching the point where it will be almost impossible to write a section of code that doesn't infringe a patent owned by somebody somewhere. What happens when a European company tries to write code that gives them differentiation just to find out that they either have to pay licensing fees or to abstain completely from releasing that piece of code ? With all the large companies
filing for thousands of patents per year when do we reach saturation point ? How does patent law encourage innovation when it will be almost impossible to write code that doesn't already infringe an existing patent ? The recent Apple IPOD cade is a simple example.
2. Eur Ing Christopher Thoday
The Patent Act 1977 enshrined my right as a software engineer to practice my profession unrestricted by patents. I can see no justification for the EU directive which has the potential to seriously damage the British economy as well as denying my human rights to earn my living writing computer software.
It is patently absurd to suggest that there is any shortage of ideas or innovation in the computer software industry that would justfy introducing this restrictive practice. I fail to see how handing monopoly powers to large corporations (who alone can afford to play the patent game) can possibly be said to be in the public interest.
How can it possibly be right to make public policy in this way? Do we or do we not live in a democracy?
3. Michael Kay
As an independent and innovative software developer, patents are the biggest threat to my livelihood. There is no way I can affort to patent my work or to sue infringers, and there is no way I can check the thousands of existing US patents to see if any line of code I write might infringe them. Existing US patents are drawn up so broadly that it's impossible to move without infringing them, and if I become too much of a threat to someone like Microsoft, they can drive me out of business simply by threatening to sue. The people who think patents will encourage innovation and competition need their heads examining.
4. CPK Smithies
Why should software patents be a special case?
If you say, "well, patents are drawn too broadly," or "there are so many patents that it's impossible to avoid accidental infringement," or "patent lawyers cost so much that inventive individuals can't afford them," then you are making the point, I think, that the patent system as a whole has grown unwieldy.
I have yet to see an argument that could not equally apply to an inventive hardware or mechanical designer with limited means.
Is the logical solution to abandon the patent system altogether? Or to reform what we have?
Remember that to be patentable, an invention must be useful, novel, and not obvious to someone ordinarily skilled in the art. It is at least questionable whether accidental infringements are mostly due to the fact that ignorant examiners have allowed patents that are in fact obvious to ordinary practitioners.
I cannot help thinking that if the patent system were better used, then impecunious inventors would be better protected.
The rational alternative, it seems to me, is to leave all inventors equally without recourse to law and thus at the mercy of imitators.
5. Paul
One reason software is different is that the costs of entry are much lower. Another is that the cost of innovation is less.
These reasons make the overhead of a patent system proportionately a much greater burden.
A third difference is the speed of innovation in software as opposed to manufacturing. The life of a patent is an eternity in software terms. Even if patents were appropriate, the current term is too long. Patents as currently practiced should not be applied broadly to software - certainly not BEFORE the system has been modified to mitigate the damage it would do.
A fourth difference is the inability of patent examiners to reject patents on basic techniques in software. However well the system works for hardware, all the available evidence shows it does not work for software.
A fifth difference is its potential to suppress innovation and progress. Trivial and obvious patents are being used by patent speculators to stifle innovation.
A sixth difference is that patents can be used to prevent interoperation and compatability, and thus to lock potential competitors out of markets. This is not in the long term interests of the markets or the consumers.
A seventh difference is that copyright is a protection not available to hardware innovations. While it is theoretically possible to allow both protections to cover software, that cannot happen with hardware. So clearly the two forms of innovation are different. We should not blindly apply a hardware model to a field which is fundamentally different.
Finally, patents are a form of interference in the market, preventing competition. While we can argue that there is an overriding need to protect investment and innovation in the hardware world, where costs are higher, the experience of the software industry is that no such need exists.
Innovation is happening just fine. And the innovative software receives a measured level of protection through copyright - which has a much less chilling effect on innovation and competition. The change is unnecessary - and potentially devastating.
(this comment part of an article in progress - copyright retained by the author - non-exclusive licence to publish this comment and derived works in any media hereby granted to this site and to all readers of this comment)
6. Nigel S Kellman
When you open Acrobat Reader it tells you what patents it has (or at least their numbers)as it starts up.
I could imagine Adobe having a patent (or maybe two/three) to protect the compression algorithm that must be in the program. I can understand that the exact look and feel of the program would come under copyright legislation. However there are around forty patents listed viz: 4,837,613; 5,050,103; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,929,866; 5,930,813; 5,943,063; 5,995,086; 5,999,649; 6,049,339; 6,073,148; 6,185,684; 6,205,549; 6,275,587; 6,289,364; 6,324,555; 6,385,350; 6,408,092; 6,411,730; 6,415,278; 6,421,460; 6,466,210; 6,507,848; 6,515,675; Patents Pending. Contains an implementation of the LZW algorithm licensed under U.S. Patent 4,558,302.
What are they all for? I cannot believe that Acrobat Reader has so many truely new and novel features! If this is because patenting needs reform lets have the reform first before our industry is ruined.