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On Thursday 26 May 2005 10:31 pm, Robin Cornelius wrote:
The report on "those workshops" some of us attended has now been published :- http://www.patent.gov.uk/about/ippd/issues/eurocomp/full_report.pdf
1. The UKPO clearly state that the purpose of the exercise from their
perspective was to "find a definition that fits the current [case] law" -
sounds a lot like "decide what you want and make the facts conform
afterwards". What the FFII and free software developers want is a CHANGE in
the law and, as discussed prior to the workshops, this was never going to be
within the remit of the workshops themselves as the UKPO cannot legislate.
(Actually, despite having no legislative capability, the UKPO and EPO can and
do make up the rules as they go along and that is precisely why we're in this
mess.)
2. The UKPO at least admit that none of the definitions - including the one in
the Directive that the Council want to force through - actually fit even that
limited remit.
This was inevitable and everyone on the FFII lists knew this in advance -
nobody actually WANTS what the UKPO want.
Useful snippets for those writing letters: (Definition A is the Directive, B
is the FFII)
The two "benchmark" definitions considered at every workshop were
definitions A and B. It would be fair to say the workshops felt definition A,
taken from the Council of the European Union's common position, did not
achieve what it sets out to achieve. It was ambiguous - possibly because the
references to novelty and non-obviousness confuse the test - and appeared to
be more permissive than current European law in terms of what is patentable.
The FFII definition, definition B, had it supporters, but it also had plenty
of critics. The critics particularly disliked the concept of "controllable
forces of nature", feeling it was uncertain as it was open to both wide and
narrow interpretations. Indeed, one delegate summed this up neatly by asking
"when is the workshop on controllable forces?". The ambiguity was reflected
in the higher proportion of "unclear" verdicts. Further, like definition A it
did not achieve a boundary that is close to the current position in Europe.
(Umm, that was the POINT! The FFII are nowhere near agreement with the current
position in Europe (as understood by the UKPO / EPO)!!! that's why we were
there!!)
Please, everyone, note well that first paragraph:
The Directive, as it currently stands, is MORE PERMISSIVE than the current
law. The UKPO have NOT accepted this as their position on the directive, it
is merely the opinion of those at the workshops. We need to drive home the
message that the UKPO's own workshops showed that their recommendation, as
embodied within the Directive, does NOT maintain the status quo - in direct
contravention of everything the UKPO has published on the Directive. The
Directive, if passed in the version proposed by the EU Council, WILL move the
balance in FAVOUR of more software patents AND give ALL existing software
patents the full force of European law.
The current Directive is the worst possible result of this whole mess - every
software patent claim that is currently granted but unenforceable will become
enforceable and a whole raft of NEW areas will also become patentable with
immediate effect. There are tens of thousands of patent claims in the
pipeline already and these would receive the widest possible reading of the
Directive.
Robin, what were your thoughts on the workshops?
Aaron? What's your view from the report alone?
My summary would be:
1. The expected results were seen:
a. Nobody liked the Directive,
b. Nobody agreed with the UKPO
c. Nobody wants the status quo, except the UKPO.
2. The UKPO were actually the wrong people to run the workshops.
a. They closed their minds to a change in the law, despite interpreting the
existing law in more and more relaxed ways.
b. They think the Directive is A Good Idea (TM)
c. They assessed the proposals only in terms of their preconceptions.
3. A useful opportunity was largely wasted.
4. A definition of technical contribution is still elusive - and should
probably stay that way. (i.e. it's an oxymoron and unworkable anyway.)
5. The existence of any "technical contribution" clause is a loophole in any
Directive and should be resisted - for all practical purposes, it is an
undefinable term and we need a change in the law to enforce that NO software
can be patented. No exceptions, no loopholes, no compromises.
6. Everyone using free software should support the European Parliament
amendments and work towards a complete restart of the entire Directive. What
the Council want to force into law is going to be bad for everyone - the
workshops showed that the current directive text offers no protection at all.
It is vague, imprecise and undefined - if it goes through, ANY software
patent will be allowed. The terms of the definitions are meaningless and
unusable, leaving a "restriction" that can be easily evaded by any patent
lawyer and in practical terms is non-existent.
--
Neil Williams
=============
http://www.data-freedom.org/
http://www.nosoftwarepatents.com/
http://www.linux.codehelp.co.uk/
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