NukeCops - Why all this fury about software patents?

If Haydn had patented "a symphony, characterised by that sound is produced [ in extended sonata form ]", Mozart would have been in trouble.

Unlike copyright, patents can block independent creations. Software patents can render software copyright useless. One copyrighted work can be covered by hundreds of patents of which the author doesn't even know but for whose infringement he and his users can be sued. Some of these patents may be impossible to work around, because they are broad or because they are part of communication standards.

Evidence from economic studies shows that software patents have lead to a decrease in R&D spending.

Advances in software are advances in abstraction. While traditional patents were for concrete and physical inventions, software patents cover ideas. Instead of patenting a specific mousetrap, you patent any "means of trapping mammals" or "means of trapping data in an emulated environment". The fact that the universal logic device called "computer" is used for this does not constitute a limitation. When software is patentable, anything is patentable.

In most countries, software has, like mathematics and other abstract subject matter, been explicitely considered to be outside the scope of patentable inventions. However these rules were broken one or another way. The patent system has gone out of control. A closed community of patent lawyers is creating, breaking and rewriting its own rules without much supervision from the outside.

The European Commission has proposed to override the current clear and uniform European patentability rules ("mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions") and replace them by a set of nationally implementable rules which make it very difficult for national courts to reject patents on algorithms and business methods such as Amazon One Click Shopping. 30,000 such patents have already been granted by the European Patent Office (EPO), openly since 1998 and more or less covertly since 1986. In return for transferring formal legislative competence to Brussels, the patent community's power center in Munich is officially authorised to set the substantive rules of patentability as it pleases. European patent attorneys are however obliged to bear a slightly greater rhetorical burden than their US colleagues: they must present their algorithm as a "computer implemented invention" which "makes a technical contribution in its inventive step".

The EPO and its community of industrial patent lawyers, assembled in its Standing Advisory Committee, have for years been dominating patent policy not only of the European Commission but also of most national governments, most large industry associations, the European Council and the European Parliament's Commission for Legal Affairs and the Internal Market (JURI). In the latter, especially Arlene McCarthy, Dr. Joachim Wuermeling, Janelly Fourtou and Malcolm Harbour are firmly opposing all attempts to limit patentability.

The plans for patentability of software have been strongly criticised by the Council of Regions of the EU, the Economic and Social Council of the EU, the French Government, the German Chamber of Industry and Commerce, the German Monopoly Commission, the British Government's Intellectual Property Rights Commission, the French Industrial Planning Commission, numerous economic studies, 30 leading scientists, numerous politicians and political parties as well as 91% of the participants in a EU consultation and more than 150.000 individual and 2000 corporate signatories of a petition to the European Parliament.

The European Parliament's Cultural Commission (CULT) and Industry Commission (ITRE) have in early 2003 voted for amendments which more or less clearly exempt software from patentability.
JURI voted on June 17th on a series of amendments in favor of a proposal which, according to the current Europarl Schedule, will be presented to the plenary for decision on 1st of September. In the plenary, fractions and groups of 32 or more deputies can file counter-proposals.

Reprinted without permission (no time to obtain it) from: http://swpat.ffii.org/#intro

Note: Thanks ChrisK