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Re: [LUG] UKPO report on "tech contribution" workshops published


On Thursday 26 May 2005 10:31 pm, Robin Cornelius wrote:
The report on "those workshops" some of us attended has now been published


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 

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 

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 

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

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