Monday, November 22, 2004

Continued discussion in European Union about "what is an invention"

As of November 22, 2004, members of the European Union [EU] have delayed voting on a proposed law that would define which technological innovations are patentable inventions, after Poland said it was considering withdrawing its support.

The proposed definition was endorsed by government leaders this month as an important legislative priority for the sluggish European economy to make it more competitive with the American economy. But an agreement reached in May 2004 by the European Union's 25 members now appears to be unwinding because of Poland's possible switch.

At issue is whether the proposed modification could open the door to patents on software - something many people in the debate believe would harm innovation.

The definition of what constitutes a patentable invention is related to recent remarks made by Ballmer of Microsoft about the WTO.

Update from eWeek:

On Thursday [Thanksgiving is not a holiday in Europe] or Friday, the Competitiveness Council is expected to decide whether to formally back-draft legislation on "the Patentability of Computer-Implemented Inventions," which received the tentative approval of the EU Council in May. In the long EU legislative process, this would amount to a significant step forward for the controversial proposal, which many argue would open the floodgates to software patents if approved in its current form.

In a statement published on Tuesday [Nov. 22, 2004], Torvalds, the inventor of the Linux operating system kernel, along with Michael Widenius, one of the creators of the MySQL database, and Rasmus Lerdorf, creator of the PHP scripting language, urged the EU Council to prevent the proposal's adoption. "In the interest of Europe, such a deceptive, dangerous and democratically illegitimate proposal must not become the Common Position of the member states," they wrote.

"The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability," the statement read. In fact, the proposal would legitimize the practice of patenting software and business practices, which has already crept into European Patent Office practice, they argued, reiterating the position of most of the proposal's critics. The proposal's backers deny that it would allow software patents.

At stake is whether software patents will be officially allowed and enforceable in Europe, as is already the case in the United States. Many companies, including American IT giants such as Cisco Systems Inc., oppose software patents on the grounds that they stifle innovation and shut out smaller competitors, requiring companies to build up huge patent portfolios in order to defend themselves from legal attacks.

"Software patents are dangerous to the economy at large, and particularly to the European economy," Torvalds, Widenius and Lerdorf stated. "Lawmakers should heed the warnings of such reputable organizations as Deutsche Bank Research, the Kiel Institute for World Economics, and PricewaterhouseCoopers. A software patent regime would establish the law of the strong, and ultimately create more injustice than justice."

UPDATE on Nov. 30

-->John Collins, a partner at UK firm Marks and Clerk said: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software".

“Linus Torvalds (creator of Linux) has recently made a statement claiming that the Directive would broaden the area in which patents would be granted. This is simply a false assumption. The original proposal was solely designed to clarify and unify existing practice in the EU. However the current version – as a result of amendments made by the European Parliament – will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless.”<--


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