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[Fwd: [ffii] JURI vote documentation PR]

Notere saerskilt att Erik Langes lyd er med, ref [13]!

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-------- Original Message --------
Subject: [ffii] JURI vote documentation PR
From: Hartmut Pilch <sslug@sslug>
Date: Wed, June 18, 2003 6:27 pm
To: sslug@sslug

FFII News -- For Immediate Release -- Please Redistribute
+++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++

       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
   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 Würmeling.

                           For immediate Release

                Please feel free to copy without attribution

   Brussels, 2003/03/17


   -> [11]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.

What happened in JURI

   -> [12]juri030617.pdf
          JURI report about result of the vote, converted to PDF from
MSWord document.

   -> [13]sound recordings of JURI sessions
          please listen to second Rothley comment on mon 16: JURI is a
sausage machine

   -> [14]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.

   -> [15]Liberal Group (Manders) 2003/06/17 Voting List
          supports many good amendments from CULT and ITRE along with a
few McCarthy amendments. Contradictory on some points, e.g.
supports both program claims and freedom of publication.

   -> [16]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
          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.

Statements from Industry and Academia

  Håkon Wium Lie, CTO of Opera Inc

   Håkon Wium Lie, CTO of [26]Opera Inc comments on [27]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.

  Richard Clark, CEO of Elysium Co Ldt and chief editor for the JPEG
standardisation committee

     The members of the JPEG committee have spent years fighting off
frivolous patent claims that have partially succeded in destroying
our standardisation efforts. With the new regulation proposed by
JURI, we are in for even more trouble. The European Patent Office
(EPO) has shown no more mercy to the software industry than the US
Patent Office (USPTO), but their patents have so far been
     considered invalid in much of Europe. Now, according to Arlene
McCarthy's voting list, we will not only be forced to regularly
face litigation on broad and trivial software patents according to
EPO/USPTO standards in Europe. We will also know for sure that
there is no exemption for the purposes of interoperability. While
in the USA there is hope that courts will give in to mounting
pressure of public opinion and reform to some extent, the JURI
Commission is preparing to codify the state of the art in current
patent office malpractise. This would allow US corporate
     landgrabbers to go on desertifying the European IT landscape while
the US is already moving to recover from the catastrophe.

  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, developper at SuSE Linux AG

   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
   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 [28]pushing the Microsoft cause in Bavaria. Arlene
McCarthy herself has openly [29]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 [30]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 [31]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 [32]IPI 2000: The Economic Impact of Patentability of Computer

  Stefan Pollmeier, MD of ESR Pollmeier GmbH, Germany

   Stefan Pollmeier is managing director of an electronics company with
45 employees near Frankfurt, Germany. 80% of their R&D is in

     During the last year I [33]learned much about the directive
     proposal and I know the amendments that passed JURI today. I don't
think that business method patents such as Amazon One-Click could
be avoided in Europe if the amended directive proposal would pass
in parliament.

     Let us take for granted that the amended directive proposal wants
to harmonize the current practice of the European patent office
EPO. Please consider the following statements from IP specialists
in 2001:

     Of course, the liberal practice in the U.S. requires to file almost
any business method for patent. These business methods are always
implemented by a computer (I have not seen any other example).


     When studying a business method computer software program it turns
out that in most cases that program includes at least one aspect
(feature) which might qualify under the European standards as

     This statement [34]originates from the acclaimed German IP law firm
"Wuesthoff & Wuesthoff".

     From this it should be clear that a directive harmonizing current
EPO practice would allow most new (computer implemented) business
methods, including Amazon One Click.

     Many people had [35]asked EU commission and the supporters of the
amended directive proposal to make clear the outcome using example
patents (Amazon One Click could be one). As far as I know they got
no answers to their questions.

  Dr. Jean-Paul Smets-Solanes

   Jean-Paul Smets, CEO of [36]Nexedi, a successful Enterprise Ressource
Planning software startup, was trained as an informatician and
   economist and and served as a french industrial planning
administrator before he founded Nexedi. Smets wrote an important
[37]study on software patents for a french governmental institution
in 2001. Upon hearing the news of the JURI vote, he restates a
concern which he already expressed at the [38]software patent
symposium in Brussels in May 2003:

   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 korean and japanese societies, 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
dogmas that everything must 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 are under
way, sponsored by the government, to preemptively 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 even be
free to use it efficiently, because the road is cluttered with the
patents of the first movers.

About FFII - www.ffii.org

   -> [39]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


   -> [40]Greens/EFA press release: disastrous vote in JURI
   -> [41]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.

   -> [42]Mayol statement
          Miquel Mayol MEP (Greens/EFA, Catalonia) issues a press
release shortly before the vote in which he warns of
          consequences of the imminent JURI decision on SMEs, which form
the bulk of the catalonian software economy.

   -> [43]phm 2003/06/17: Abstimmung in JURI jetzt
   -> [44]phm 2003/06/17: Abstimmung in JURI: Ergebnis
   -> [45]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

   -> [46]Andrew Duff MEP on Swpat
          Some semblance of common sense in a digital world that has
gone mad

   -> [47]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.

   -> [48]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.

   -> [49]Slashdot: EU Moves Towards Single European Patent Standard
          Many readers fooled by the Newman/Yahoo propaganda article,
but also many enlightening statements.

   -> [50]CORDIS: MEPs vote to tighten up rules on patentability of
          computerised inventions
          Lying seems to have become a common sport in EU politics. This
report seems to come from Arlene McCarthy's staff.

   -> [51]ZDNet UK: European software patents inch closer
          A fairly objective account of what JURI chose and what JURI
voted against. Also cites some elements from our press

   -> [52]Heise News-Ticker: Europäische Softwarepatente rücken näher
          German IT news magazine with as lively forum discussion as
Slashdot. Article quotes FFII and Cohn-Bendit. Forum is full
of furious condemnations of McCarthy and the JURI politicians
in general.

   -> [53]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.

   -> [54]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.
          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.

    [55]© 2003/06/18 [56]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
  11. http://swpat.ffii.org/index.en.html
  12. http://swpat.ffii.org/news/03/juri0617/juri030617.pdf
  13. http://www.digitalforbruger.dk/SWPAT/
26. http://www.opera.com/
28. http://swpat.ffii.org/players/cducsu/index.de.html
30. http://k.lenz.name/LB/archives/000415.html
  31. http://swpat.ffii.org/papers/bessenhunt03/index.en.html
  32. http://swpat.ffii.org/papers/indprop-ipi00/index.en.html
  33. http://www.esr-pollmeier.de/swpat/
  34. http://swpat.ffii.org/papers/wuesthoff-bm01/index.en.html
  35. http://swpat.ffii.org/analysis/testsuite/index.en.html
  36. http://www.nexedi.com/
  37. http://www.pro-innovation.org/rapport_brevet/brevets_plan-en.pdf
38. http://swpat.ffii.org/events/2003/europarl/05/index.en.html
  39. http://www.ffii.org/index.en.html
  40. http://www.greens-efa.org/en/press/detail.php?id=1445&lg=en
42. http://esquerra.org/article.php?id_article=1788&mes_info=1
  43. http://lists.ffii.org/archive/mails/neues/2003/Jun/0003.html 44.
http://lists.ffii.org/archive/mails/neues/2003/Jun/0004.html 45.
http://lists.ffii.org/archive/mails/swpat/2003/Jun/0060.html 46.
http://www.timj.co.uk/digiculture/patents/2003-06-03_Duff.php 47.
  48. http://aful.org/wws/arc/patents/2003-06/msg00093.html
52. http://www.heise.de/newsticker/data/pmz-18.06.03-000/
  53. http://swpat.ffii.org/events/2003/europarl/06/17/index.en.html 54.
55. http://www.gnu.org/licenses/fdl.html
  56. http://swpat.ffii.org/group/index.en.html

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