[Upd-discuss] European Council against software patents, New Scientist

[Zapopan Martin Muela-Meza]

Europe fights tide of absurd patents
* 08 January 2005
* 
* Barry Fox
http://www.newscientist.com/article.ns?id=mg18524813.300

THE European Parliament wants to make 2005 an
uncomfortable year for multinationals hoping to
use their legal muscle, rather than innovative
products, to stifle competition. Within the next
few weeks, the parliament is likely to approve a
European Commission directive to outlaw patents
on computer software and business methods.
Previous attempts to do this have foundered, and
the problems may be far from over.

What Europe wants to avoid is the situation in
the US and Japan, where patents are routinely
granted on what many regard as obvious ideas that
serve only to restrict competition. Some of the
more sweeping patents granted in the US cover the
ordering of gifts over the internet, and the
shopping cart metaphor used on e-commerce sites.
Probably the most infamous patent covers the idea
of searching through a multimedia database.

Such patents have been condemned for the fear of
litigation they breed, which discourages
development of rival products. In Europe,
programmers and politicians have long agreed that
such broadly applicable patents are undesirable
because software is already protected by
copyright, which forbids copying of the program
code.

Patent protection spreads far wider, as it allows
the holder to claim ownership of variations on
the original idea. The owners of the patent on a
speech-driven word processor program, say, might
claim the patent covers variations in which the
software is driven by eye blinks, toe taps or
finger clicks - even if they had not intended to
develop such variations.

Software and business methods have never been
patentable in Europe. But computer-enabled
devices, such as a cellphone with a graphical
user interface, and computer-enabled processes
like a car's engine management system, can be
protected by a patent. The problem is that it has
proved hard to draw the line, and this has
allowed lawyers to get patent protection for
software by dressing it up as a
computer-implemented invention. It is this
backdoor route that the draft directive aims to
block.

In the US, the floodgates for patents on business
methods - and by extension, patents on software -
opened in July 1998, when the Court of Appeals
ruled on the validity of a patent on a particular
method of banking. The court decided that
virtually any idea was patentable as long as it
had not been patented before. The Japanese Patent
Office followed suit - its website even explains
how to patent a way of persuading guests to come
early to a party.

Peter Hayward of the UK Patent Office says the
planned directive is intended to stop any drift
towards this happening in Europe. But the task of
bringing it into existence hit a series of
stumbling blocks. The trouble began in February
2002, when the EC's first draft failed to draw a
clear distinction between software-controlled
inventions and the software that does the
controlling.

In September 2003 the parliament amended the
draft to clearly outlaw pure software patents.
The Foundation for a Free Information
Infrastructure (FFII), a pressure group supported
by the open source movement, liked the draft.

But the makers of cellphones, computers and
consumer electronics devices were up in arms.
Their trade association, EICTA, pointed out that
it was worded in a way that allowed a patented
technique to be used without infringement if it
had a "significant purpose". "It was crazy. It
meant patents could only be enforced for trivial
purposes," says Hugh Dunlop, a patent attorney in
London.

The commission and parliament are now discussing
a new draft that could become law in the next few
weeks. EICTA warns that if the directive contains
any more accidents of wording, it risks rendering
unenforceable the 30,000 patents on
computer-implemented inventions its members
already hold.

The new draft is expected to say that
computer-implemented inventions can be patented
only if they include a "technical contribution".
But such terms are vague, and the definition may
well hinge on lawyers' interpretation. Rufus
Pollock of the FFII fears that "technical
contribution" could be interpreted far too
broadly, allowing software patents to be granted
and threatening programmer's creativity "If Haydn
had patented a 'symphony in which sound is
produced in extended sonanta form', Mozart would
have been in trouble," he says.
>From issue 2481 of New Scientist magazine, 08
January 2005, page 22
Soft solution

Not everyone agrees that software patents are a
bad thing. Greg Aharonian is a San Francisco
patent buster who is hired by corporations to
find old inventions - "prior art", in patent
jargon - that invalidate patents filed by rivals.
He sees copyright as the problem, and last month
he filed a lawsuit asking a US court to declare
software copyright unconstitutional. "Software
copyright might be politically expedient, but it
is scientifically and legally illogical,"
Aharonian says.

When a program steps through its lines of code,
the process is no different from the events in a
machine. He argues that novel software, like a
novel machine, should be patentable, not subject
to copyright. Software patents will work, he
says, if patent examiners are given more
resources. And they must seek prior art outside
of patents.


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ENG: "Corporations are not democratic institutions --their directors and managers owe no accountability to anyone but the shareholders that employ them."
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ESP: "Las corporaciones (empresas) no son instituciones democráticas: a sus directores y gerentes no se les puede fincar responsabilidades ante nadie excepto ante sus accionistas que les emplean."

-- Bakan, Joel. (2004). The Corporation. The Pathological Pursuit of Profit and Power : La corporación (empresa). La búsqueda patológica de ganancias y poder. London: Constable & Robinson, p. 151


		
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