March 5, 2002

Software patents: France accuses EC of misleading e.Europe

Author: JT Smith

The French Governement sent
on Friday, March 1st a vigourous letter to the European Commission in
which it complains about the proposed directive on so-called "computer
implemented inventions".

According to the French Governement, the proposed directive on
computer implemented inventions "would open the realm of patentability
to all software and eventually business methods" because the
"directive claims in the explanatory memorandum that all programs when
run in a computer are by definition technical".

Also, "The French Government considers that the proposed directive
does not provide adequate answers on the economic, scientific and
cultural impact of the software economy as well on the requirement of
promoting innovation which was defined as a priority in the e.Europe
action plan."

The letter concludes that "The French Governement intends to block any
project which consequences would be negative in Europe in the field of
innovation, interoperability and open source / free software, as well
as on all actors (publishers, integrators, users), and in particular
on SMEs."

Anne Ãstergaard, spokesperson for EuroLinux and member of SSLUG in
Denmark, considers that "obviously, the French Government did read the
proposed directive and does understand that this text solves nothing
in terms of interoperability, innovation, competition, SMEs and open
source / software. They are perfectly aware that the proposed
directive extends the patent system in Europe to all software and
business methods, just as it is the case in the United-States, and
they are aware of the negative economic consequences of this
extension. They also fully understand that the European Commission is
trying to mislead e.Europe by hiding economic studies that do not
support their views or even by simply lying on the consequences of the
proposed text on the patentability of business methods or on
interoperability."

EuroLinux welcomes the French move. EuroLinux wishes more European
Governement to take similar positions and require the European
Commission to achieve a proper economic impact assessement, to take
into consideration budget issues, take into consideration national
official economic reports (France, Germany, UK, Netherland, etc.) and
to work for the European Citizens rather than for the BSA.

Rough English Translation of the Letter Sent by the French Government:

Dear Sir,

During the Council of Internal Market on March 1st 2002, the European
Commission will introduce its proposal of directive on computer
implemented inventions. Because the impact of software patentability
goes far beyond mere technical issues, I must explain hereby the
position of French government.

Rules as they are defined by the European Patent Convention (EPC) have
excluded programmes for computers "as such" from the list of patentable
inventions. However, the practice of the European Patent Office (EPO)
has slightly evolved in the last few years and has granted many patents
in the field of software. Thanks to an initiative lead by France
together with other EU nations, the Diplomatic Conference in charge of
the revision of the EPC, which was held in November 2000 in Munich,
decided not to change the provisions of the Convention in this field,
and proposed that a clear European Community position should be
defined, based on a detailed analysis of its economical, technical and
juridical consequences.

The European Commission lauched various studies and a consultation in
the last quarter of 2000. However, the proposed directive does not
highlight the risks of a juridical validation of the EPC practice in
the Members States of the Union in comparison with its eventual
advantages. Various reports and studies launched by Member States have
in fact drawn very cautious conclusions regarding such an evolution.

In this context, it appears that the proposed directive does not
provide any kind of precision on the limits and requirements for
patentability but, on the countrary, claims in the explanatory
memorandum that "all programs when run in a computer are by definition
technical" (p. 7). This would open the realm of patentability to all
software and eventually business methods. However, it clearly appeared
both in France as well as at the EPO that such an extension would be
rejected by the vast majority.

Also, the provisions for future revisions defined at Article 8 do not
allow to assess the impact of the evolution of the juridical protection
of inventions implemented by computer programmes on competition and
innovation before 3 years after the adoption of the text. France
considers that it is a requirement before any discussion within the
Council to provide a review of the protection of inventions implemented
by computer programmes resulting from the EPO practice and in the
Member States.

The French Government considers that the proposed directive does not
provide adequate answers on the economic, scientific and cultural
impact of the software economy as well on the requirement of promoting
innovation which was defined as a priority in the "e.Europe" action
plan.

The French Governement intends to block any project which consequences
would be negative in Europe in the field of innovation,
interoperability and open source / free software, as well as on all
actors (publishers, integrators, users), and in particular on SMEs.

Considering this, the French Government is not in favour of the
proposed directive, which does not seem to be able to provide a clear
and adequate position on this major topic in terms of innovation for
now and for the future.

Yours Sincerely,

C Pierret

References

[0] Original Press Release of the French Government
http://www.telecom.gouv.fr/dp/brevetlogiciel.pdf

[1] FFII Analysis of the Directive
http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/

[2] European Software Patent Horror Gallery
http://swpat.ffii.org/vreji/pikta/mupli/index.en.html

[3] What is behind the recent surge in patenting? Samuel Kortum, Josh
Lerner. Research Policy 28. 1999. Elesevier

[4] Abstraction oriented property of software and its relation to
patentability. Tetsuo Tamai. Information and Software Technology.
1998. Elsevier.

[5] Juridical Coup at the European Patent Office
http://petition.eurolinux.org/pr/pr14.html

[6] Software Patentability with Compensatory Regulation: a Cost
Evaluation. Jean Paul Smets and Hartmut Pilch. Upgrade February 2002
http://swpat.ffii.org/stidi/pleji/
http://www.upgrade-cepis.org/issues/2001/6/up2-6Smets.pdf

[7] Fraunhofer Study about the Economic Effects of Software Patents.
Micro and Macroeconomic Implications of the Patentability of Software
Innovations. German Federal Ministry Economics and Technology.
November 2001.

http://www.bmwi.de/Homepage/Politikfelder/Technologiepolitik/Technologie...
http://www.bmwi.de/Homepage/download/technologie/Softwarepatentstudie_E.pdf

[8] Stimulating competition and innovation in the information society.
Conseil Général des Mines. September 2000.
http://www.pro-innovation.org

[9] Collusion Discovered between BSA and European Commission
http://petition.eurolinux.org/pr/pr18.html

About EuroLinux - www.EuroLinux.org

The EuroLinux Alliance for a Free Information Infrastructure is an
open coalition of commercial companies and non-profit associations
united to promote and protect a vigourous European Software Culture
based on Open Standards, Open Competition, Linux and Open Source
Software. Companies, members or supporters of EuroLinux develop or
sell software under free, semi-free and non-free licenses for
operating systems such as Linux, MacOS or Windows.

The EuroLinux Alliance launched on 2000-06-15 an electronic petition
to protect software innovation in Europe. The EuroLinux petition has
received so far massive support from more than 100.000 European
citizens, 2000 corporate managers and 300 companies.

Press Contacts

France & Europe: Jean-Paul Smets jp@smets.com +33-6 62 05 76 14
Germany & Europe: Hartmut Pilch phm@ffii.org +49-89 127 89 608
Denmark and Northern Europe: Anne Ãstergaard aoe@sslug.dk
Belgium: Nicolas Pettiaux nicolas.pettiaux@linuxbe.org
Netherlands: Luuk van Dijk lvd@mndmttr.nl

Permanent URL for this PR

http://petition.EuroLinux.org/pr/pr19.html

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