Say NO to ePatents

More information on Software Patents

This second page is a collation of quotes to illustrate the complexity and confusion in the area of ePatents. Full copies of the original texts are available by following the links, but be aware that certain of these sites may be slower than usual due to a possible increase in hits during the online demonstration. If the original document is in PDF rather than HTML format, I've linked to the FFII HTML page - this then links to the PDF, if required.

http://www.iprcommission.org/papers/text/final_report/execsumhtmfinal.htm
(Scroll down to Chapter 5 for the computers/internet section)

"Developing countries and their donor partners should review policies for procurement of computer software, with a view to ensuring that options for using low-cost and/or open-source software products are properly considered and their costs and benefits carefully evaluated. In order that software can be adapted to local needs, developing countries should ensure that their national copyright laws permit the reverse engineering of computer software programmes, in ways that are consistent with relevant international treaties which they have signed."
"Internet users in developing nations should be entitled to fair use rights such as making and distributing printed copies from electronic sources in reasonable numbers for educational and research purposes, and using reasonable excerpts in commentary and criticism. Where suppliers of digital information or software attempt to restrict "fair use" rights by contract provisions associated with the distribution of digital material, the relevant contract provision may be treated as void. Where the same restriction is attempted through technological means, measures to defeat the technological means of protection in such circumstances should not be regarded as illegal. Developing countries should think very carefully before joining the WIPO Copyright treaty. Countries should also not follow the lead of the US and the EU by implementing legislation on the lines of the DMCA or the Database Directive."
"Developing countries should, within the constraints of international and bilateral obligations, provide a pro-competitive patent system that limits the scope of subject matter that can be patented; applies strict standards of patentability; facilitates competition; includes extensive safeguards against abuses of patent rights; and encourages local innovation."

http://lpf.ai.mit.edu/Patents/rms-pto.html

"Suppose that it is the year 2010 and you are a software developer. You want to write a program combining 200 patentable techniques. Suppose 15 of them are new--you might patent those. Suppose 120 of them were known before 1990--those would not be patented any longer. That leaves 65 techniques probably patented by others--more than enough to make the project infeasible. This is the grid lock we are heading for."

http://swpat.ffii.org/papers/eubsa-swpat0202/esc0209/index.en.html

"The Economic and Social Council of the European Union, a consultative organ of experts from various fields, criticises the European Patent Office's software caselaw and the European Commission's proposal for a software patentability directive and asks the European Parliament to reject the proposal and instead ask for a reconfirmation of the non-patentability of software. This study met strong resistance from a group of supporters of the European Patent Office, but was in the end passed with a 2/3 majority."
"The Committee considers that given the lack of independent, in-depth, serious economic and impact studies, in particular on SMEs-SMIs, employment and long-term social impact, it would be dangerous to rush legislation through to extend the arrangements for patents to an indefinite number of software programmes considered to produce a "technical effect", but that it would be more appropriate to harmonise laws and, by a knock-on effect, the jurisprudence of the member countries by confirming, as is already the case in most member countries, the possibility of allowing patents for technical inventions that include specific dedicated code indispensable for them to operate (but not those solely or mainly in the software) or which would use standard software almost exclusively)."

http://swpat.ffii.org/letters/meps038/index.en.html

"On Monday 1st September, the European Parliament will decide about the software patent directive COM(2002)92 2002/0047, euphemistically titled "on the patentability of computer-implemented inventions".
"The directive draft as amended by the rapporteur Arlene McCarthy with support of the Legal Affairs Committe would make calculation rules and business methods such as Amazon One Click Shopping patentable, as in the USA. 30,000 US-style software patents which the European Patent Office has recently granted against the letter and spirit of the current law would become enforceable in Europe, and national judges, who have criticised the EPO's practise[1] and refused to follow it[2], would moreover be obliged to make practically anything man-made under the sun (or "all practical problem solutions", as a leading EPO judge put it) patentable."

http://swpat.ffii.org/#eubsa-tech

"The EU software patent directive is a "wolf in a sheep's coat". We have documented in detail what misleading terms such as "technical contribution" really mean."

http://swpat.ffii.org/papers/eubsa-swpat0202/tech/index.en.html

"According to the European Commission (CEC)'s Directive Proposal COM(2002)92 for "Patentability of Computer-Implemented Inventions" and the revised version approved by the European Parliament's Committee for Legal Affairs and the Internal Market (JURI), algorithms and business methods such as Amazon One Click Shopping are without doubt patentable subject matter. This is because:
  1. Any "computer-implemented" innovation is in principle considered to be a patentable "invention".
  2. The additional requirement of "technical contribution in the inventive step" does not mean what most people think it means.
  3. The directive proposal explicitly aims to codify the practise of the European Patent Office (EPO). The EPO has already granted thousands of patents on algorithms and business methods similar to Amazon One Click Shopping.
  4. CEC and JURI have built in further loopholes so that, even if some provisions are amended by the European Parliament, unlimited patentability remains assured.
The EPO/CEC/JURI doctrine of "technical contribution" in a nutshell
According to EPO/CEC/JURI doctrine, the "inventive step" between the "closest prior art" and the "invention" must involve what is called a "technical contribution" or "solution of a technical problem": an improvement of computing efficiency, e.g. a reduction in the number of mouse-clicks needed to perform a business transaction. Equivalents of the "technical contribution the inventive step" requirement exist in the US and Japan as well. US patent attorneys therefore generally write business method patents in a way that allows them to pass the EPO's requirements, and thousands have already passed.
As if this wasn't enough, EPO/CEC/JURI moreover insist that the "technical contribution" needn't be new and may consist entirely of "non-technical features", and they staunchly refuse to define or explain what "technical" means. All amendment proposals in the European Parliament which tried to address these defects were rejected by JURI.