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EU patent study and consultation

By Paul Johnson in MLP
Fri Oct 20, 2000 at 11:25:03 AM EST
Tags: Politics (all tags)
Politics

The European Commission has published a study on "The Economic Impact of Patentability of Computer Programs". You can read the summary from the link above, or get the full version in PDF. You can have your say in the Consultation exercise.


Overall the message looks mixed. They explicitly recognise and discuss the concerns of the free software community, but seem to feel that "applications" built on top of free software should still be patentable. Reading between the lines it looks like they have in mind a system where you won't be able to sue someone for distributing source code that implements a patented algorithm, but will be able to sue someone for actually using it or profiting from it.

On the issue of the patent minefield the discussion is less encouraging. They recognise the problem of low-quality patents, especially in the US, but then go on to say that these patents are not important because courts will not enforce them. The issue of getting funding to fight such a lawsuit seems to have escaped them. Or possibly courts in European countries are less likely to defer to the patent department than in the US.

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Poll
Most important patent reform:
o Abolish them completely 16%
o Only enforceable when someone makes some money 13%
o Tighten up checks for prior-art and obviousness 62%
o Reduce cost of litigation 3%
o No change: it works fine 3%

Votes: 53
Results | Other Polls

Related Links
o study
o full version
o Consultati on
o Also by Paul Johnson


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EU patent study and consultation | 8 comments (3 topical, 5 editorial, 0 hidden)
Who do they serve? (2.50 / 2) (#3)
by RareHeintz on Fri Oct 20, 2000 at 10:46:01 AM EST

...you won't be able to sue someone for distributing source code that implements a patented algorithm, but will be able to sue someone for actually using it or profiting from it.

That's actually far more reasonable that I'd have expected, given that a lot of corporate interests would like to outlaw reverse engineering.

...[low quality] patents are not important because courts will not enforce them. The issue of getting funding to fight such a lawsuit seems to have escaped them.

This thought surprises me less, and looks like it came straight from the corporate interests who were probably "consulted" for this. Implementation of that principle favors only wealthy patent holders, and would leave individual inventors and small companies with few options to defend their own undertakings.

OK,
- B
--
http://www.bradheintz.com/ - updated kind of daily

Not merely pro-corporate. (none / 0) (#6)
by Paul Johnson on Fri Oct 20, 2000 at 10:59:32 AM EST

This thought surprises me less, and looks like it came straight from the corporate interests who were probably "consulted" for this.

Not necessarily. They have consulted academic economics literature extensively, and they cite Eric Raymond on several occasions. The writers are obviously open to the ideals and benefits of free software. They also discuss concerns with monopoly power over standards and ways to prevent it. Overall your assumption that this study is inevitably going to be pro-corporate is not justified.

Does anyone know what patent litigation in the EU is like?

Paul
You are lost in a twisty maze of little standards, all different.
[ Parent ]

No, but... (3.50 / 2) (#8)
by RareHeintz on Fri Oct 20, 2000 at 11:14:49 AM EST

Overall your assumption that this study is inevitably going to be pro-corporate is not justified.

Perhaps - I admit to having the occcasional knee-jerk reaction. I don't think it entirely unjustified, though - goverments on both sides of the Atlantic have a habit of caving in to corporate interests, and to assume that this is their default position until proven otherwise remains an economical approach.

However, I'm not without specific reasons in this case. They can quote ESR all they want, but in the summary of the analysis, the following lessons are drawn from the experience of the United States (please pardon the lengthy quote):

1. On the one hand there is abounding evidence that the profitability and growth of independent and SME software developers in the States has often been to a significant extent dependent on possession of patent rights. (For how patents help, see above.)

2. On the other hand, there is deep concern

2.1 that patents are being granted on trivial, indeed old, ideas and that consideration of such patents let alone attacking such patents is a major burden, particularly on SME and independent software developers

2.2 that patents may strengthen the market position of the big players; and

2.3 that the computer program related industries are examples of industries where incremental innovation occurs and that there are serious concerns whether, in such industries, patents are welfare enhancing.

Our conclusions are that:

factor 1 is clearly important: the patentability of computer program related inventions has helped the growth of computer program related industries in the States, in particular the growth of SMEs and independent software developers into sizeable indeed major companies; and overall it is not clear on the evidence that factor 1 is outweighed by factors 2.1 to 2.3.

Does that strike anyone else as slanted? This all but comes out in favor of the "one-click shopping" patent, which I think most of us will agree is covered by items 2.1-2.3.

Mind you, I'm not an anti-patent-law zealot, nor even necessarily against software patents, but I am in favor of reforms making bad ones harder to get and good ones easier to defend.

OK,
- B
--
http://www.bradheintz.com/ - updated kind of daily
[ Parent ]

EU patent study and consultation | 8 comments (3 topical, 5 editorial, 0 hidden)
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