Les brevets sur les logiciels et leur danger pour le shareware

Europe Shareware software patents newsletter #2
25 March 2003

Webpage: http://www.europe-shareware.org/pages/brevets.html



CONTENTS:

1. Vote in the European Parliament Industry and Trade Commission

2. A crisis is developping in the US patent system 

3. Microsoft takes the leadership in software patents arms race

4. UK Liberal Democrats concerned about software patents

5. EU Council in favour of software patents

6. B. Kahin "Information process patents in the U.S. and Europe"

7. Le Monde Informatique: french SMEs are against software patents

8. Mathwork sued over patent infringement

9. Ralph Nader : software patents only benefit to lawyers



----
1. Vote in the European Parliament Industry and Trade Commission
http://swpat.ffii.org/papiere/eubsa-swpat0202/itre0212/

On 21 February, the EP Industry Committee (ITRE) voted against 
proposals for software patentability and drafted amendments to ensure
that software is kept excluded from the scope of patentability.

See:
ITRE opinion by Elly Plooy-van Gorsel (20.02.2003)
http://www.europarl.eu.int/meetdocs/committees/itre/20030319/481006en.pdf


One month ago the culture Commission voted the same way against software
patents.
See:
CULT opinion by Michel Rocard (20.01.2003)
http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019en.pdf


----
2. A crisis is developping in the US patent system 

The US patent system is broken : the developpers face a lot of costs ;
economically, it is not shown that patents have produced any gain that
would justify their costs ; juridically, it is not proved that patents
are the protection that software needs ; and patents inhibit the work of
independant developpers and, in turn, innovations. Europe could gain a
great deal by sparing its developpers the same patent system. The writer
of this article is Lawrence Lessig, a professor of law at Stanford Law
School and author of The Future of Ideas: The Fate of the Commons in a
Connected World.

http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/
FullStory&c=StoryFT&cid=1045510979794&p=1012571727092

Few quotes from the article:

  " As pressure mounts on the European Parliament to extend patent
    protection to software, a crisis is developing in US patent law that
    Europe would do well to consider. The system in America is broken - to
    the great detriment of software developers generally - and there is no
    reason to believe the Europeans could do any better.

    The claim that the US patent system is in crisis is nothing new. What
    is new is the identity of those making it. "

  " Yet now the Patent Office is singing a different tune. As its new head, 
    former Republican Congressman James E. Rogan, said in an interview with 
    the L.A. Times on February 7, 2003: "This is an agency in crisis and it's 
    going to get worse. It doesn't do me any good to pretend there's not a 
    problem when there is . "

  " This early and easy acceptance rate led to an explosion in patent 
    applications and patents granted - and, in turn, in the costs that
software
    developers face. "Developing software is [now] like crossing a
minefield," 
    says Richard Stallman, "With each design decision, you might step on
a patent 
    that will blow up your project." "

  " Software developers are quite aware of these costs. Yet economists have 
    found it very hard to reckon any net benefits. And thus conservatives are
    increasingly sceptical of this form of regulation. "

  " American software developers will continue to choke on software patents,
    especially as more and more get enforced in massively expensive
litigation.
    These patents will in turn inhibit the work of independent developers and
    protect large developers over small. As Mr Gates rightly concluded in his 
    1991 memo, "established companies have an interest in excluding 
    competitors."Patents give them just one more tool. "



----
3. Microsoft takes the leadership in software patents arms race

The FFII (german organization promoting open standards) has published the
official European Patent Office statistics concerning software patents
granted on its website.

See:
http://swpat.ffii.org/patente/zahlen/

Here are the main figures for the year 2002. We see that, contrary to its
claims, IBM is no more, by far, the first in number of software patents
granted.

2002
MATSUSHITA ELECTRIC IND CO LTD
141

2002
MICROSOFT CORP
132

2002
SONY CORP
112

2002
SIEMENS AG
108

2002
SUN MICROSYSTEMS INC
99

2002
ERICSSON TELEFON AB L M
91

2002
CANON KK
85

2002
IBM
85

2002
HEWLETT PACKARD CO
81

2002
HITACHI LTD
75

2002
NIPPON ELECTRIC CO
73

2002
CIT ALCATEL
67

2002
FUJITSU LTD
66

2002
NOKIA CORP
62

2002
SEIKO EPSON CORP
59




Here are the first figures for the year 2003. IBM still has no software
patent granted while Microsoft is now clearly taking the leadership in
this race. We can consider that IBM is going to be marginalized and will
soon suffer from its weak position.


2003
HEWLETT PACKARD CO
25

2003
MICROSOFT CORP
19

2003
NOKIA CORP
16

2003
MATSUSHITA ELECTRIC IND CO LTD
14

2003
FUJITSU LTD
13

2003
CIT ALCATEL
11

2003
RICOH KK
10

2003
HITACHI LTD
9

2003
CANON KK
8

2003
SIEMENS AG
8



----
4. UK Liberal Democrats against software patents

From the Liberal Democrats IT policy document, the UK Liberal Democrats
are especially concerned about the use of patents in the area of computer
software: they insist on the benefit of the competition between
developpers, wich increases inventiveness. 

"Making IT Work- Policies for Information
Technology, Policy Paper 54" 

http://www.makeitpolicy.org.uk/ITPolicyPaper.pdf

You find these patent paragraphs: 

  " 2.2.5 We do not believe that the citizen as consumer will be well 
    served if a wholesale failure in the copyright system leads to a 
    drying up of creativity as the financial incentives disappear. But we 
    also recognize that there are circumstances in which protection
systems can
    have the contrary effect of stifling creativity against the public
interest.
    We are especially concerned about the use of patents in the area of
    computer software in this respect. "

  " 2.2.6 There are usually many ways to achieve the same objective using
    computer code. The public benefits from the fact that different teams of
    programmers will work on solving problems and release their separate
    solutions as competitors in the market. The specific code each team has
    written is protected by copyright. Allowing a wide definition of
    inventiveness for patents in the field of software could lead to a
    reduction in this creative activity. This might be justifiable if there
    were evidence that the software industry as a whole were suffering
    because of an inability to secure revenue for research and development
    but there is no evidence that this is the case as the sector remains
    vibrant and growing. "



----
5. EU Council in favour of software patents

The EU Council meeting of 2003/03/20-1 has produced a long policy
document:

http://www.consilium.eu.int/Newsroom/LoadDoc.asp?DID=75136&LANG=1

A few quotes:

  " The European Council calls upon the Commission and Member States to
    improve exploitation of intellectual property rights by taking forward
    measures against counterfeiting and piracy, which discourages the
    development of a market for digital goods and services; to protect patents
    on computer-implemented inventions. It expresses its satisfaction at the
    common political approach on the Community patent reached in Council
    earlier this month and calls on the Council to rapidly finalise work
    thereon. "

It seems that this part of the document was written by the
"Intellectual Property Working Party" which has also produced a document
that asks for program claims. This text is in contradiction with the
economical studies published by the european governments (see
Monopolkommission and Commissariat G�n�ral du Plan papers).



----
6. B. Kahin "Information process patents in the U.S. and Europe"

The american professor Brian Kahin published an article about the
positive and negative effects of software patentability by taking into
account the differences on both sides of the atlantic ocean.
Brian Kahin is a Visiting Professor in the School of Information, the
Gerald R. Ford School of Public Policy, and the Department of
Communication Studies at the University of Michigan. He was the Director
of the Center for Information Policy of the University of Maryland.


http://www.firstmonday.dk/issues/issue8_3/kahin/index.html

Information process patents in the U.S. and Europe:
Policy avoidance and policy divergence.
Brian Kahin, Firstmonday March 2003


Abstract
Patents on software and business methods appear to have a pivotal
position in today's economy, yet they have remained a policy backwater
in which scope of patentable subject matter has expanded without
legislative input. This is changing as Europe struggles with patent
reform. A push by the European Commission to validate and promote
software patents has been opposed by many companies and
professionals, and especially the open source community. In this
process, it has become clear that Europe opposes the broad
non-technical patents on business methods that are now available
in the U.S., signaling a major rift in international standards of
patentability.

Recent hearings held by competition agencies in the U.S. show severe
problems of overpatenting that extend beyond software to much of the
ICT sector. These problems have been ignored by the Commission,
which despite a pro forma effort to address economic issues, clearly
feels more comfortable framing the issue in legal terms. In outlining what
a properly developed policy framework would look like, the paper
stresses the need to understand why software is different from other
technologies, why the disclosure function of the patent system is failing,
the build-up of risk and uncertainty and its effect on industry structure,
and the international political economy of information process patents.



----
7. Le Monde Informatique: french SMEs are against software patents

Le Monde Informatique, the leading french magazine about computer
business, published two weeks ago a file about software patents, now
online. The main french SMEs CEOs are quoted and show a strong opposition
to software patents.

"Brevets de logiciels - Les PME de l'�dition affichent leur m�fiance"
http://www.weblmi.com/articles_store/973_11/Article_view



----
8. Mathwork sued over patent infringement

The leading simulation software company was savagely attacked by National
Instruments Inc in the US, and cousin patents are looming at the EPO to be
activated. 

See:
http://swpat.ffii.org/patents/effects/simulink/



----
9. Ralph Nader: software patents only benefit to lawyers

The american politician Ralph Nader was interviewed by Wired about the
problems the US patent system is currently facing.

Ralph Nader, Patent Buster
http://www.wired.com/wired/archive/11.03/view.html?pg=3

A few quotes:


  " NADER: The United States spends more than $1 billion
    annually to examine patents. Despite this expenditure, the
    Patent Office has become a glorified diploma mill, routinely
    granting rights that should never have been issued. The
    patents wouldn't stand up in court, but they're expensive to
    litigate. So why are we forcing developing countries to
    follow our lead when we don't do a good job ourselves? "

  " The system protects two groups: software companies with weak
    products who use patents to harass competitors, and patent
    lawyers. The ease of getting patents makes it economically
    attractive to abuse the system in a number of unpleasant
    ways. People obtain patents and then ask businesses to pay
    licensing fees that are cheaper than the cost of mounting a
    legal defense. Also, firms are wary of investing in new
    products for fear they will be ambushed by an infringement
    claim that may or may not be valid but will cost millions in
    legal fees. "

 

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