[A2k] Written intervention by FSFE on future work to WIPO SCP/13

[Georg C. F. Greve]

--
FYI.

  http://blogs.fsfe.org/greve/?p=292
  http://fsfeurope.org/projects/wipo/20090327-FSFE.pdf


                            STATEMENT BY THE

                 FREE SOFTWARE FOUNDATION EUROPE (FSFE)

                       TO THE 13th SESSION OF THE

             STANDING COMMITTEE ON THE LAW OF PATENTS (SCP)

                             ON FUTURE WORK

                       (Geneva, 23-27 March 2009)

Mr Chairman,

We have followed the debates of this week with great interest. Our
thanks go to you for your able chairmanship, and the Secretariat for
their hard work to facilitate the dialogue. Regarding the future actions
resulting from the work of the SCP/13, we have a few concrete proposals
and comments.

As a cross-cutting issue between exceptions and limitations and patents
and standards, we think that WIPO should have a working group on
interoperability issues with a focus on Information Technologies
(IT). Standards are the dominant tool to achieve interoperability, which
then drives competition, innovation and economies of scale. Yet in our
experience, the existence of standards alone can be insufficient to
achieve interoperability if there are no surrounding activities, such as
interoperability testing and engineering. There are also other ways to
achieve interoperability outside formal standardisation, such as shared
code bases, often on the grounds of the Free Software model.

Interoperability is an essential requirement for future trends in IT,
which are based on modularity, re-combination, and re-use. Only through
interoperability will the IT industry be able to sustain its high level
of innovation, and only through interoperability will other sectors of
economy be able to reap the benefits of ICT-enabled innovation and
economies of scale.

FSFE sees a strong public need for interoperability which in all
likelihood outweighs the potential innovative effects of patents. In our
view this public interest justifies an exception on the ability to
enforce patents against interoperability. This exception would provide
legal safety for the entire IT sector against abusive patenting
strategies that threaten to take entire markets hostage today.

Secondly we think that it would be to the benefit of WIPO Member States
to make use of the criteria highlighted in document SCP/12/3 for the
economic rationale of patenting. The first step would be an assessment
of how different areas meet the "three step test for inclusion in the
patent system" of demonstrated market failure to provide innovation,
demonstrated positive disclosure from patenting, and effectiveness of
the patent system in the area to disseminate knowledge.

Further fine-tuning of the patent system may be necessary in line with
this facts-based application of the economic rationale for patenting,
such as an area-specific adjustment of parameters like cost, time and
scope of patents in order to best meet the requirements of each area. A
study by the secretariat might be a good start in order to understand
the differences between the areas.

Lastly we would like to reflect upon the various remarks that have been
made by different Member States throughout the week on the necessity to
harness an encompassing set of tools for innovation to address pressing
challenging for humankind, such as health, climate change or food
security.

The ability to meet these challenges will depend on WIPO's ability to
bring all innovative instruments to bear, including Open Innovation
Models, Free Software, and Open Standards. Two examples can help to
highlight the pervasiveness of these tools.

Several Member States have suggested that the dissemination of patent
information be based on the Open Innovation Model associated with the
on-line dictionary Wikipedia. A quoted reason for this request was the
understanding that the complexity of the subject matter makes it
unlikely that any individual party could provide all the
information. Without undervaluing the task of disseminating patent
information, areas like health, climate change or food security are
likely of even greater complexity, increasing the need for application
of Open Innovation Models.

Secondly, considering the power consumption of computational centres
around the world and the increasing use of software in all areas it will
for instance be harder to meet the challenges of climate change under
exclusion of Free Software innovation. Free Software is defined by a
unique level and granularity of user control for all layers of the
software, allowing to enable or disable components as needed, and
providing more effective power consumption control and allowing for
optimisations that are not possible with proprietary systems. These
advantages of Free Software for Green IT should be embraced on all
levels, WIPO included.

Over the past years, various Member States have repeatedly requested
that WIPO become inclusive of all methodologies to foster innovation,
including Copyright, Patents, Free Software and Open Innovation
Models. Many Member States successfully employ a wider mix of
methodologies on a national level already, such as Germany, which as
part of its response to the financial crisis decided to invest 500m EUR
into the focus areas Green IT, IT-Security and Free Software. Other
examples exist from various Member States around the world, spanning all
regional groups.

We therefore humbly submit to the Secretariat that now would be the time
to begin thinking about concrete ways of ensuring these tools for
innovation are fully integrated into the knowledge and capacity building
initiatives of WIPO. Further information from the Secretariat on these
areas, case studies illustrating their practical application "in the
wild" in varying contexts, relevant to both the developed and developing
world, can only serve to inform the debates of all of WIPOs activities
and committees.

                  --- Statement by Georg C.F. Greve <greve@fsfeurope.org>
                               Free Software Foundation Europe, President

--
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
--
[ Content of type application/pgp-signature deleted ]