[A2k] FSFE statement to WIPO SCP/13 on exceptions and limitations

[Georg C. F. Greve]

[ http://blogs.fsfe.org/greve/?p=269 ]

                            STATEMENT BY THE

                 FREE SOFTWARE FOUNDATION EUROPE (FSFE)

                       TO THE 13th SESSION OF THE

             STANDING COMMITTEE ON THE LAW OF PATENTS (SCP)

                       (Geneva, 23-27 March 2009)

Mr Chairman,

FSFE joins other speakers in congratulating you on the honour of
chairing this most important session of the SCP. We would also like to
extend our congratulations to the secretariat, which has provided us
with several very informative studies on four essential areas for the
effectiveness of WIPO's work. We believe these studies provide an
excellent starting point for the discussion and should be maintained as
living documents that can accompany our debates and act as backdrop for
the future action discussion.

Referring to document SCP/12/3, the report on the international patent
system, FSFE believes that its systematic considerations should be taken
into account for and put in perspective to the reports. In particular
the economic rationale for the patent system should be taken into
account and reflected for the considerations of document SCP/13/3, the
report on exclusions from patentable subject matter and exceptions and
limitations to the rights.

In our view, the rationale for exceptions and limitations should loosely
be based on the ancient wisdom of "primum non nocere", the knowledge
that action can be more harmful than inaction, that inclusion of an area
in the patent system can result in less innovation than its
exclusion. It should be the overarching principle for this SCP to
maximise innovation, and the economic rationale for patenting provides
us with the background to understand when we would be well advised to
follow this principle and avoid regulation through patents.

As highlighted in document SCP/12/3, the economic rationale for patents
is based on providing incentives in cases of market failure, disclosure
of knowledge in the public domain, as well as technology transfer,
commercialisation, and diffusion of knowledge. The "three step
test for inclusion in the patent system" should therefore be
based on demonstrated market failure to provide innovation, demonstrated
positive disclosure from patenting, and effectiveness of the patent
system in the area to disseminate knowledge. Software fails all three
tests, for instance, as innovation in the IT industry has been dramatic
before the introduction of patents, there is no disclosure value in
software patents, and patents play no role in the diffusion of knowledge
about software development.

FSFE understands that the secretariat worked hard to provide a
conclusive report on the issues according to its mandate to provide a
report on exceptions and limitations. Unfortunately the result is a
report in which some exceptions from the patent system have been
excepted, specifically cases where the exception from the patent system
is based on a different view of patentable subject matter, such as
software under article 52 of the European Patent Convention.

In order to provide an overview of the area covered by patents and the
exceptions to that coverage, we submit that member states could mandate
the secretariat to also provide an overview over the differences in
patentable subject matter and reasons therefore, and combine it with the
existing SCP/13/3 to provide a comprehensive overview.

--- Statement by Georg C.F. Greve,
    Free Software Foundation Europe, President

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Georg C. F. Greve                                 <greve@fsfeurope.org>
Free Software Foundation Europe	                 (http://fsfeurope.org)
President                                      +41 43 500 03 66 ext 400
http://fsfeurope.org/about/greve            http://blogs.fsfe.org/greve