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Fwd: Re: EU Improves Software Patent, But Outlaws Amazon One Click

----------  Forwarded Message  ----------

Subject: Re: EU Improves Software Patent, But Outlaws Amazon One Click
Date: Wed, 18 Jun 2003 12:46:44 +0200 (CEST)
From: Hartmut Pilch <sslug@sslug>
To: Laurence Vandewalle <sslug@sslug>
Cc: sslug@sslug, Björn Becker <sslug@sslug>, Danielle Auroi 
<sslug@sslug>, Dan Leskien <sslug@sslug>, Gilles 
Savary <sslug@sslug>, Hélene   Flautre 
<sslug@sslug>, Kjell Axel Sevon <sslug@sslug>, 
Lachlan Muir <sslug@sslug>, Marco Cappato 
<sslug@sslug>, Mercedes Echerer <sslug@sslug>, 
Miquel Mayol I Raynal <sslug@sslug>, Matti Wuori 
<sslug@sslug>, Piia-Noora Kauppi <sslug@sslug>, Paul 
Lannoye <sslug@sslug>, Elly Plooij-van Gorsel 
<sslug@sslug>, Tamara Muruetagoiena 
<sslug@sslug>, Paraskevi Tsetsi <sslug@sslug>

The headline should have been

	EU to blur patentability law, legalise Amazone One Click

I wrote an open letter to the yahoo journalist, which can be found through
our documentation of the event at


This page also contains some usefule quotations.  Please feel free to
distribute and reuse.

   [1][translatable text] [2][howto help] [3][printable version] [4][up]

       EuroParl 2003/06/17: JURI votes for Fake Limits on Patentability

   The European Parliament's Committee for Legal Affairs and the Internal
   Market (JURI) voted on tuesday morning about a list of proposed
   amendments to the planned software patent directive. It was the third
   and last in a series of committee votes, whose results will be
   presented to the plenary in early september. The other two commissions
   (Culture, Industry) had opted to more or less clearly forbid software
   patents. The JURI rapporteur Arlene McCarthy MEP (UK socialist) also
   claimed to be aiming for a "restrictive harmonisation of the status
   quo" and "exclusion of software as such, algorithms and business
   methods from patentability". Yet McCarthy presented a voting list to
   fellow MEPs which turns ideas of the Amazon One-Click type into
   patentable inventions. McCarthy and her followers rejected all
   amendment proposals that limit patentability while supporting all
   those which go even beyond the European Commission's proposal in
   imposing unlimited patentability and patent enforcability in Europe,
   ensuring that Europe will have the most laxist and rigid software
   patentability law of the world and little chance of recovery for years
   to come. Most of McCarthy's proposals found a conservative-socialist
   2/3 majority (20 of 30 MEPs), whereas the proposals from the other
   committees (CULT, ITRE) and study reports commissioned by the
   Parliament and other EU institutions were disregarded. A few
   socialists and conservatives voted together with Greens, Left and
   (partially) Liberals in favor of amendments which limit patentability,
   but they were overruled by the two biggest blocks, which followed the
   instructions of Arlene McCarthy and EPP shadow-rapporteur Dr. Joachim

   Brussels, 2003/03/17

   For immediate release


   -> [10]FFII: Software Patents in Europe
          For the last few years the European Patent Office (EPO) has,
          contrary to the letter and spirit of the existing law, granted
          more than 20000 patents on computer programs, i.e. rules of
          organisation and calculation framed in terms of generic
          computing equipment. Now Europe's patent community is pressing
          to codify this practise into a new law. Europe's programmers
          and citizens are facing considerable risks. Here you find the
          basic documentation, starting from a short overview and the
          latest news.


  Håkon Wium Lie, CTO of Opera Inc

   Håkon Wium Lie, CTO of [19]Opera Inc comments on [20]Arlene McCarthy's
   voting list:

     Arlene McCarthy and her followers seem determined to kill
     interoperability on the World Wide Web and to strengthen large
     US-based monopolies. At the World Wide Web Consortium (W3C), we
     have been struggling with patent policy questions for years. The
     Industry Commission proposed to exempt the use of software for
     interoperability purposes from the scope of patent enforcability.
     This could have been extremely helpful for standardisation. It
     would also have helped to avoid some of the worst anti-competitive
     practises. And it wouldn't have cost the patent owner lobby very
     much. Yet they discarded even this very moderate amendment without
     even giving a reason. Our representations to the parliament have
     been completely ignored. The JURI rapporteur's lawmaking clearly
     has nothing whatsoever to do with the interests of the European
     software industry.

  Dr. Bernhard Runge, senior developper of SAP AG and former professor of
  computer science

     SAP has suffered a lot from US patents on what under this directive
     would probably be "computer-implemented inventions with a technical
     contribution in their inventive step". SAP has grown big by
     copyright, and being imitated was never seen as a big problem. We
     do not need protection by patents but rather protection from
     patents. SAP had to pay exorbitant extortion sums to some
     individual patent owners (among them professors from well known
     US-universities) with high criminal energy. Software patents
     legalize and encourage criminal or immoral behaviour in the
     software industry. There are probably nearly no non-trivial
     software patents. Therefore the only reasonable use of software
     patents is to have weapons for conflicts between companies ("you
     have infringed my 100 patents [admittedly trivial and meaningless -
     which we will never say in public], we have infringed your 100
     patents [also admittedly trivial and meaningless - which you will
     never say in public], therefore let's forget this conflict and make
     sure, that nobody else will disturb both of us"). The armaments
     race imposes high costs for all software companies. SAP had to
     install a patent department for defensive purposes in 1998 and is
     now regularly divert money to this department, which could
     otherwise have been spent on R&D. However, even a high number of
     patents does not help us against individuals with high criminal

     Our patent lawyers have meanwhile persuaded some people in the
     managment that having a directive to allow us to play the software
     patent game in Europe as well is good idea. But I think they are
     wrong and their thinking will not prevail in the company.

     Contrary to what some of the directive's proponents say in public,
     this directive make algorithms and business methods patentable. How
     could it be otherwise? What else can there to patent in our
     software, if not algorithms and business methods?

  Bernhard Kaindl of SuSE GmbH

   Leading JURI committee members are not satisfied with putting the
   software industry at risk. They also want to make sure that every
   programmer will run afoul of patents as soon as he publishes a program
   on the web. While CULT and ITRE introduced safeguards for the freedom
   of publication, Arlene McCarthy is flatly ignoring these safeguards
   and instead recommending "compromise amendment 1", which makes
   publication a direct infringment. It seems almost entrepreneurially
   irresponsible to go on selling Linux distributions under these
   conditions. If one of thousands of programs in our distribution
   infringes on one of tens of thousands of broad and trivial software
   patents granted by the EPO, we can be sued and forced to take our CDs
   from the market. Similar cases have already arisen due to trademarks,
   but legal insecurity around patents is far greater. Cases such as SCO
   and EBay show that the danger is not merely theoretical. At a moment
   where public administrations are introducing free/opensource operating
   systems or using them to pressure Microsoft into price reductions,
   Arlene McCarthy and her allies seem to be joining Microsoft in its
   crusade to suppress free software. Bavaria's Christian Social Union
   appears to be instrumental in this and has at the same time been
   [21]pushing the Microsoft cause in Bavaria. Arlene McCarthy herself
   has openly [22]attacked the GNU General Public License as "just
   another form of monopolism". McCarthy and her ally Dr. Joachim
   Würmeling have declined all invitations for dialog from our side and
   refused to reply to our questions. They are of course not obliged to
   talk to us. However, strengthening monopolies by handcuffing
   competitors is about the worst thing a government can do against

  Dr. Karl-Friedrich Lenz, Professor for German Law and European Law, Aoyama
  Gakuin University, Tokyo:

   The European Parliament seems to be set to ignore the more than one
   hundred thousand signatures of European citizens opposing software
   patents and go ahead with legalizing them anyway. If that happens, we
   will see large license payments from the European to the American
   software industry, lots of litigation based on software patents,
   Internet patents and business method patents, and some very
   unfavorable effects for open source software. And introducing a large
   number of new monopoly rights in the information society sector
   certainly won't help with the EU strategic goal "to become the most
   competitive and knowledge-based economy in the world."

   see also [23]Lenz Blog: McCarthy Guardian Article

  Jozef Halbersztadt, patent examiner at the Polish Patent Office

   Polish companies own practically no software patents and Poland has a
   tradition of refusing to grant such patents. The McCarthy directive
   would bring a radical change to Poland. In Recital 16 it is said
   clearly, that this proposal is to be considered as a measure of
   protecting developped economies against competition from "low-cost
   economies". While I do not believe that protection against legitimate
   competition in the sofware industry will work to any country's
   advantage, it will surely hurt Eastern Europe even more severely than
   Western Europe, simply because it imposes a high level of legal costs
   which we are less able to afford.

  Peter Holmes, economist, participant of an EU-commissioned study,
 University of Sussex

   The study which we conducted for the European Commission said that
   there is no evidence to support an extension of software patentability
   and that evidence on the economic effects of software patents in
   general was inconclusive. We had to compromise on this formula,
   because this was a committee decision, and the majority of committee
   members were patent lawyers with firm convictions about the usefulness
   of patents. Yet in some ways this was already a progress. If we had to
   take the decision again today, we might be able to advance further.
   The recent [24]Bessen & Hunt study seems to show conclusively, based
   on extensive fact-gathering, that software patents have stifled
   software innovation. Today, the burden of proof should be on those who
   propose legislation to allow software patents.

   see [25]IPI 2000: The Economic Impact of Patentability of Computer

  Dr. Jean-Paul Smets-Solanes, CEO of nexedi.com, economist and former French
  industrial planning functionary

   Today the JURI voted for not stopping the monopolisation of public
   informational infrastructure. If the Plenary does not open their eyes
   for what is happening, soon every citizen will pay tax, not to the
   state, but to american and japaneese corporations, because they own
   the patent rights on digital communications in the information

   Europe is today 7 years behind Korea and Japan, where
   citizens pay 12 EUR per month for 24 Mbps ADSL access to the Internet.
   This is because EU politicians chose to believe in the dogma that
   infrastructure buildup should be left to private initiatives.

   Now Europe seems to be following the same type of dogma again:
   privatisation of abstract ideas, erection of enclosures in a way that
   simply can't work, as common sense and economic studies tell us.

   Dogmas make life easy for legislators. But for the rest of us, the
   price to pay can be very high. The patents are where the infrastructure
   is. Currently in Japan concerted efforts, partially sponsored by the
   government, are under way, to secure patents on all kinds of software
   ideas. Housewives are taking courses in writing patent applications.
   JURI is now making sure that these patent will come to Europe. Thus,
   even when we catch up and achieve the same level of communication
   infastructure as East Asia, we may not not be able to use it
   efficiently, because the road is cluttered with the patents of the
   first movers.

About FFII - www.ffii.org

   -> [26]Foundation for a Free Information Infrastructure
          The Foundation for a Free Information Infrastructure (FFII) is
          a non-profit association registered in Munich, which is
          dedicated to the spread of data processing literacy. FFII
          supports the development of public information goods based on
          copyright, free competition, open standards. More than 200
          members, 180 companies and 12000 individual supporters have
          entrusted the FFII to act as their voice in public policy
          questions in the area of software property law.

Press Contacts


          Hartmut Pilch +49-89-18979927


   -> [27]Greens/EFA press release: disastrous vote in JURI
   -> [28]Gasoliba statement
          Carles Gasoliba i Bohn (CdC, CiU, ELDR), liberal MEP from
          Catalonia, warns that the JURI decision leads to broad and
          trivial patents on non-inventions and that controllable forces
          of nature must be an essential element of any invention in the
          sense of patent law.

   -> [29]Mayol statement
          Miquel Mayol MEP (Greens/EFA, Catalonia) issues a press release
          shortly before the vote in which he warns of disastrous
          consequences of the imminent JURI decision on SMEs, which form
          the bulk of the catalonian software economy.

   -> [30]phm 2003/06/17: Abstimmung in JURI jetzt
   -> [31]phm 2003/06/17: Abstimmung in JURI: Ergebnis
   -> [32]phm 2003/06/17: JURI-Abstimmung und Grüne PE
          explains that 1/3 was against and 2/3 may have believed
          McCarthy's promise that she wanted "no patents on algorithms
          and business methods like in the US", that other commissions
          voted against swpat and this is only an intermediate stage,
          quotes Rothley and other pro-swpat MEPs who showed frustration

   -> [33]Andrew Duff MEP on Swpat
          Some semblance of common sense in a digital world that has gone

   -> [34]Yahoo: EU Improves Software Patent, But Outlaws Amazon One
          Journalist Matthew Newman copy&pastes patent lobby propaganda.
          The truth is: JURI is replacing an already unified patent
          standard by a set of intransparent rules which turn Amazon's
          One-Click idea into a patentable invention and create no unity
          but at best put the EPO more firmly in charge.

   -> [35]phm 2003/06/18: Patent Propaganda in Yahoo
          A public letter to Matthew Newman, author of a Yahoo article
          which collects deceptive patent lobby statements into a
          misleading message.

   -> [36]2003/06/17 BXL: The JURI Vote
          A short public meeting between software stakeholders and
          members of the European Parliament to discuss about the JURI
          vote on the Directive Proposal, which is taking place on the
          same day. This will also be a kickoff meeting for a campaign to
          inform MEPs in the plenary.

   -> [37]JURI 2003/04-6 Amendments: Real and Fake Limits on
          Members of the European Parliament's Commission on Legal
          Affairs and the Internal Market (JURI) submitted amendments to
          the European Commission's software patent directive proposal.
          While some MEPs are asking to bring the directive in line with
          Art 52 EPC so as to clearly restate that programs for computers
          are not patentable inventions, another group of MEPs is
          endorsing the EPO's recent practice of unlimited patentability,
          shrouded in more or less euphemistic wordings. Among the
          latter, some propose to make programs directly claimable, so as
          to ensure that software patents are not only granted but
          achieve maximal blocking effects. If patentability is to be
          limited, the following amendments need to be approved: 4, 5, 9,
          17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 39,
          40, 41, 43, 45, 46, 48, 51, 52, 54, 59, 63, 65, 68, 70, 71.
          Cult4, Cult5, Cult6, Cult9, Cult11, Cult18, Itre1, Itre2,
          Itre3, Itre11, Itre14, Itre15, Itre18.

   -> [38]Arlene McCarthy 2003/06/17 Voting List
          supports all amendments that further weaken limits of
          patentability and strengthen patent enforcability even beyond
          the CEC proposal, opposes all amendments that provide a means
          of limiting patentability or patent enforcability.

   -> [39]Liberal Group (Manders) 2003/06/17 Voting List
          supports many good amendments from CULT and ITRE along with a
          few McCarthy amendments. Contradictory on Freedom of

   -> [40]McCarthy 2003/06/12: Letter to the Guardian
          Arlene McCarthy, Member of the European Parliament for UK
          labour and rapporteur of the JURI committeee for the software
          patent directive proposal, has for the first time directly
          answered arguments from critics in a letter to the british
          newspaper The Guardian. Yet the basic questions, e.g. what
          should be patentable and how McCarthy's proposals achieve this,
          remain unanswered. McCarthy reiterates demagogic statements of
          whose untruth she is well-informed and even resorts to lies in
          the strictest sense of the term, such as saying that she
          introduced a provision to allow decompilation. McCarthy
          moreover attacks the GNU General Public License in an apparent
          effort to shift focus to unrelated subjects and incite
          flamewars with the free software community. We analyse
          McCarthy's fallacies and the political context of her letter.

    [41]© 2003/06/18 [42]Workgroup


   1. http://swpat.ffii.org/news/03/juri0617/swnjuri030617.en.txt
   2. http://swpat.ffii.org/group/todo/index.en.html
   3. http://swpat.ffii.org/news/03/juri0617/swnjuri030617.en.pdf
   4. http://swpat.ffii.org/news/03/index.en.html
  10. http://swpat.ffii.org/index.en.html
  19. http://www.opera.com/
ml 21. http://swpat.ffii.org/players/cducsu/index.de.html
 23. http://k.lenz.name/LB/archives/000415.html
  24. http://swpat.ffii.org/papers/bessenhunt03/index.en.html
  25. http://swpat.ffii.org/papers/indprop-ipi00/index.en.html
  26. http://www.ffii.org/index.en.html
  27. http://www.greens-efa.org/en/press/detail.php?id=1445&lg=en
polgrp=.&ictry=.&itempl=.&ireturn=&imode= 29.
  30. http://lists.ffii.org/archive/mails/neues/2003/Jun/0003.html
  31. http://lists.ffii.org/archive/mails/neues/2003/Jun/0004.html
  32. http://lists.ffii.org/archive/mails/swpat/2003/Jun/0060.html
  33. http://www.timj.co.uk/digiculture/patents/2003-06-03_Duff.php
  34. http://biz.yahoo.com/djus/030617/1229001026_2.html
  35. http://aful.org/wws/arc/patents/2003-06/msg00093.html
  36. http://swpat.ffii.org/events/2003/europarl/06/17/index.en.html
  37. http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/index.en.html
ml 39.
ml 40.
 41. http://www.gnu.org/licenses/fdl.html
  42. http://swpat.ffii.org/group/index.en.html


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