July 17, 2006

Roche

In the Roche case (C-539/03, 13 July 2006) the European Court of Justice ruled against the possibility of hearing patent infringement cases together under Article 6 Nr. 1 of Regulation 44/2001.

Actually the case was about the predecessor to the Regulation, the Brussels Convention, but its reasoning should apply as well to the Regulation text.

That Article reads:

"A person domiciled in a Member State may also be sued:

1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;"

Roche was alleged to have violated the same patent in multiple Member States. The plaintiff wanted to consolidate the lawsuit in the Netherlands.

That is not possible.

The Court observed that under Article 64 of the European Patent Convention any action for infringement of an Europeant patent must be examined in the light of the relevant national law in force in each of the States for which it has been granted. Therefore, there is no danger of contradictory judgments. Each Member State's courts decide the case based on their national patent law, which may differ.

The Court also confirms that any plea of objection that the patent is not valid leads to an exclusive jurisdiction for each Member State where the patent has been granted, as decided also in GAT v Luk on the same day.

That in turn means that even if one were to allow the plaintiff to choose one Member State to sue for patent violations in multiple Member States, the defendant could split the proceeding anyway by raising the plea of objection that the patent in question is not valid.

Posted by Karl-Friedrich Lenz at 11:35 AM

GAT v Luk

The European Court of Justice has ruled on the interpretation of Article 22 Paragraph 4 of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Case C-4/03 of 13 July 2006, GAT v Luk.

Actually the case was about Article 16 paragraph 4 of the Brussels Convention, but the same reasoning should apply to the interpretation of the Regulation text. It reads:


"The following courts shall have exclusive jurisdiction, regardless of domicile:

4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place.

GAT and Luk are German companies. Their law suit before a German court was about a French patent held by Luk. GAT raised as a plea in objection that the French patent was not valid.

The question is if German courts are allowed to rule on that plea in objection, or if the rule quoted above gives French courts the exclusive jurisdiction on that question.

The court decided that the exclusive jurisdiction extends to this situation. German courts can not decide on the validity of a French patent, even if the effects of the judgment would be limited to the parties, as under relevant German law.

Posted by Karl-Friedrich Lenz at 11:17 AM

May 14, 2006

Software Patents Campaign Dead

Axel H. Horns plays around with the new "Google Trend" toy to find out that volume on the search term "software patent" is way down after a strong spike in 2005.

That spike in 2005 is of course caused by the debate over the failed proposal to legalize software patents in Europe.

His conclusion is that "the campaign against software patents is virtually dead" even on the Internet.

I think it would be more exact to say that the search volume is back to levels seen before 2005.

While I am not sure if I agree with the "virtually dead" conclusion, he is certainly right that interest in the question has decreased substantially.

If that is the price to paid for winning this issue, I am quite willing to pay it. Between a software patent Directive alive and kicking associated with a strong campaign against it and a dead Directive followed by a drop in interest in the question, the better choice is clearly the dead Directive.

Actually, I would be rather happy to see interest in the Surveillance Directive fall as well, once it has been declared unconstitutional by courts in all Member States.

Posted by Karl-Friedrich Lenz at 11:30 AM

April 15, 2006

Patent Extremism

Now someone claims a software patent on "a method for invoking a subroutine".

Posted by Karl-Friedrich Lenz at 11:44 AM

April 08, 2006

FFII President

Pieter Hintjens has started a blog with a post about rabbits and foxes, which is actually about software patents.

I strongly recommend reading that post.

Posted by Karl-Friedrich Lenz at 06:29 PM

March 10, 2006

Software Patent Lawsuit Flood

predicted as a consequence of the $612.5 million Blackberry settlement.

Posted by Karl-Friedrich Lenz at 09:43 PM

February 09, 2006

Weapons of Business Destruction

Powerful article against software patents by Tim Wu at the occasion of the BlackBerry case.

Posted by Karl-Friedrich Lenz at 02:34 PM

January 14, 2006

Math You Can't Use

is the title of a book by Ben Klemens. Chapter 6 has now been published at Groklaw.

This adds some interesting perspective to the debate about software patents. I was specially impressed by the claim that an agressive software patent lawsuit against vital Internet software like Apache or BIND could bring down the Internet.

Posted by Karl-Friedrich Lenz at 06:18 PM

January 11, 2006

Trips and Software Patents in Japan

I have posted a short comment (PDF file, 13 pages) on the recent report of the study group on the legal protection of software at the Japanese Ministry of Economics, Trade and Industry I blogged a couple of days ago. That comment introduces the report for people not reading Japanese in some more detail and then focusses on the question if introducing an interoperability exception (as proposed in the report) is consistent with obligations under TRIPS.

I have written last year about TRIPS in relation to the European software patent legislation.

Posted by Karl-Friedrich Lenz at 02:09 PM

January 08, 2006

Declaratory Judgment

Apple has sued Burst.com and is looking for a declaratory judgment that Apple is not infringing any patents.

I have noted in my 2002 book on software patents (in German) that one way to strike back against patent trolls is filing exactly this kind of lawsuit, asking the court to declare that there is no patent violation, and to award damages resulting from the bad faith assertion of patent rights where there are none.

Some holder of a ridiculous and harmful software patent might have to face hundreds of such lawsuits, putting somewhat of a chilling effect on patent trolls.

Posted by Karl-Friedrich Lenz at 05:15 PM

January 07, 2006

Japanese Software Patent Discussion

As I briefly mentioned a couple of months ago, a study group at the Japanese Ministry of Economics, Trade and Industry is discussing on how the worst harmful effects of software patents can be limited.

Below I present a translation of the executive summary of their October 2005 interim report.

"Software is structured in many layers, like operating system, middleware, and applications. Software on higher layers depends on software on lower layers. Therefore product development needs to use the functions of lower level software.

Also, software components work only by communicating with related software components (communication structure).

On the other side, if monopolistic structures advance to a certain level, there is a tendency for the users of the product dominating the market to act regardless of product quality and price, leading to lock-in.

The field of software has a layered structure, a communication structure, and a tendency to lock-in. In this field, granting of patents may lead to too strong monopolistic rights. Harming competition may easily lead to effects of braking innovation.

Therefore, while the majority of cases of asserting patent rights is in line with the essential meaning of the system, taking the above special characteristics into account we think that providing the environment for innovation in the software sector will lead to innovation with a real meaning.

The following legal measures come to mind for the near future. Make “Rules on Economic Transactions in the Market” that determine in which case asserting patent rights is an abuse of rights. For example, an assertion of patent rights that obstructs communication between software components, where the patent holder restricts transactions between third parties or asserts his patent right in a manner exceedingly contrary to public interest might qualify as “abuse of patent rights”.

As a reaction of industry an approach similar to Creative Commons might spread. The standard approach in industry should become a custom that as an agreement between private enterprises no one asserts patents in certain categories as open source software or interoperability.

As further points for study on the agenda the system of compulsory licensing and strengthening of antitrust countermeasures come to mind."

Update: have posted a short comment (PDF file, 13 pages in English) with some more detail and a discussion of the relation to TRIPS.

Posted by Karl-Friedrich Lenz at 11:22 AM

January 06, 2006

Innovate America Report

For some reason, I can't seem to be able to locate the December 2004 report "Innovate America" at the "Council on Competitiveness" website.

It is still available at the Wayback Machine here.

On page 15 they talk about intellectual property and claim that 85 percent of the market value of S&P 500 companies are intangible assets. One more reason to pay attention to this field.

They also say that there is a need to discuss special rules for the IT area, citing the need for interoperability and open standards. From the report at page 15:

"No single organization has the scale to build today's complicated systems, but a single entity can inhibit or block access to IT networks through control of patent portfolios and prohibitive rents."

This leads to the recommendation of promoting open standards and interoperability on page 44.

They also note on page 19 that international student applications to the US have dropped by about a third in 2004 and America now for the first time faces the possibility of a reverse brain drain, as a consequence of "new immigration controls".

This report had some influence (just as the resounding rejection of software patents in Europe last summer) on the recent discussion about limiting the harmful effects of software patents in Japan.

Posted by Karl-Friedrich Lenz at 02:38 PM

January 04, 2006

Businessweek: "Patent Epidemic"

"Microsoft is now defending itself in 35 to 40 patent lawsuits simultanously", according to this Businessweek article.

Clearly, lobbying for software patents makes about as much sense for Microsoft as lobbying for software product liability.

Posted by Karl-Friedrich Lenz at 09:02 PM

November 04, 2005

Storyline Patent

Someone has applied for a patent for a fictional storyline in America.

If you destroy any meaningful limitations of patentability, nothing else should be expected.

Time to kick off the debate about "aesthetic creations as such"?

Someone who asks for a movie storyline patent in Europe doesn't seem to have much of a case right now. Used to be one of the reasons against software patents.

We will see if the American patent office actually issues this.

Found at Slashdot.

Posted by Karl-Friedrich Lenz at 06:48 PM

October 27, 2005

MySQL CEO on Software Patents

Over at Groklaw.

The article makes a few points I had not heard so clearly before.

One is that software has so many producers. Companies like Coca-Cola and private users produce more software than software companies like Microsoft.

And another one is that it is impossible to do meaningful patent searches for software patents. That means that no one can be safe.

Posted by Karl-Friedrich Lenz at 02:07 PM

TRIPS Enforcement Consultation

AFP reports that the U.S. has formally asked China to explain about possible deficits of enforcement in violation of Part III of the TRIPS agreement.

China has until January to respond. If there is no or no satisfactory response, we might see another dispute resolution procedure on TRIPS enforcement. Since there have been cases brought by the U.S. against the EC and some Member States before, I am not sure what the AFP article meant with writing that "the US-led initiative is the first formal use of a WTO provision that allows member states to probe others on their law enforcement, judicial decisions and administrative rulings in the IPR arena."

This would indeed seem to be the first time someone invoked these rules formally in relation to China.

Posted by Karl-Friedrich Lenz at 01:01 PM

Almost Despicable

for the U.S. to force stronger pharmaceutical patent protection rules on weaker countries in bilateral free trade agreements, undermining access to essential medicines as provided under the Doha Declaration, said Prof. Jackson just at the "10 Years WTO" conference, in answer to a critical question.

I certainly agree that there is a problem here. That is a problem not only to assure access to medicines. It is also one of perceived legitimacy for international trade law and the patent system. Clearly patients are more important than patents.

Posted by Karl-Friedrich Lenz at 12:48 PM

October 14, 2005

METI Study Group Interim Report

The Japanese Ministry of Economy, Trade and Industry has released a short interim report (Japanese language) of a study group discussing software patents.

The report is aimed at stopping abuse of software patents. The group is looking especially for ways to protect against patent based threats to interoperability. One of the strategies discussed is learning from the Creative Commons project.

I hope to be able to discuss this development in some more detail in later posts.

Posted by Karl-Friedrich Lenz at 08:18 PM

August 16, 2005

I Had Not Heard That One

Steven Zenith writes that software patents are BAD. Readers of this blog won't be surprised that I agree completely.

However, he says that he has found a new reason for this view. The reason he gives is that software ideas are "inevitable". That means they are "obvious to one skilled in the art".

I agree that there are a lot of trivial software patents around, eroding support for the patent system as such. One click comes to mind, as well as the FFII webshop.

However, the question if something is obvious or not is different from the question if it is patentable subject matter or not.

Writing a Harry Potter book is something not everybody skilled in the art of writing can easily do. It would be quite unfair to the author to describe her effort as "obvious".

Books are not patentable subject matter. That is the reason that there won't be a patent on a "story about magicians' high schools" (though with recent patent inflation trends, one never knows).

In the same way, I see no theoretical reason why there can't be ideas in the software field that are neither trivial nor obvious, though I quite agree that the majority of software patents actually awarded are.

Posted by Karl-Friedrich Lenz at 08:36 PM

July 23, 2005

Emotions

Microsoft has applied for a patent on "custom emoticons", as described in this ZDNet article ("Microsoft frowned at for smiley patent").

The basic idea of that patent application seems to be saving bandwidth by reusing images already sent once. This used to be called a "cache", and it is not really a new idea just because you associate some keystrokes with the "costum emoticon".

Of course opponents of software patents are pleased. While the patent office should reply with a big costum emoticon for "Rolling on the Floor Laughing" to this application, they probably won't.

So we get another software patent that looks like someone made a joke on Slashdot, as remarked by Open Source Consortium executive director Mark Taylor, according to the ZDNet article.

That won't help in keeping up support for software patents in America.

Posted by Karl-Friedrich Lenz at 11:31 AM

July 09, 2005

Anti-Patent Story

This story might be described as a rather strong anti-patent opinion. "Intellectual Property is Costing Me My Life".

The author describes a problem with buying medication effective against Hepatitis in Europe that was not available in his home country America. A shipment of that medication was held up by costums. The reason, in the words of the author: "There was a patent or IP law problem restricting the European branch of the pharmaceutical industry from selling these drugs to Americans, even if I bought them in Europe with my own money for personal use."

It is difficult to give an opinion about this case without knowing what exactly was the "patent or IP" problem here and hearing the other side's point of view (patent holders and customs). However, at first glance, this looks like an American citizen has additional health problems because of the patent system.

Normally that happens only to citizens of developing countries. See the Ip-health Archives and and the Consumer Project on Technology page for more details.

Posted by Karl-Friedrich Lenz at 10:07 PM

July 07, 2005

Their Boat was Bigger

FFII reports that the software patent Directive proposal was voted down by a large majority in Parliament. A so decisive rejection has never happened before. This is the first time that Parliament has rejected a Council Common Position before entering a conciliation procedure.

They have a gallery with pictures from demonstrations surrounding the vote. One shows a big cruiser in the background the Directive proponents used to show a "Vote for the CII Directive" banner, and a small boat with people holding up a sign reading "software patents kill innovation". Link to the picture here. See also this short report from FFII on that demonstration.

This shows that not always the side with the bigger boat wins. A "Vote for the CII Directive" did not happen, even with our side outspent by a large margin in the lobbying effort.

Since I have opposed for the last several years this project to sell the European software industry out to American interests while destroying any limits of the patent system, I am pleased to hear this news.

And this time there is no way Council can ignore the vote in Parliament.

Posted by Karl-Friedrich Lenz at 01:58 PM

June 30, 2005

Don't Get Too Cocky Yet, Mr. McDowall

In an article on recent developments in the software patent directive legislation Bob McDowall writes that "sanity prevails" and "the battle is over". The "software socialists" can find some other worthy cause.

Well, Mr. McDowall, let's just remember one basic fact about European legislation. A directive means nothing without implementing legislation in the Member States.

So even if the enemies of freedom succeed in fooling Parliament into selling out the European software industry, that is only the starting point for 25 different battles in the Member States.

And you won't be able to do that legislation against the will of national Parliaments.

He didn't even bother to use the smokescreen "CII".

Posted by Karl-Friedrich Lenz at 12:22 AM

June 26, 2005

"Patentanwalt" is not an Insult

Axel H. Horns complains about an misleading article describing the politician Klaus-Heiner Lehne as "Patentanwalt" (patent attorney).

He is right, of course. The article in question was wrong in that detail.

However, as FFII has discovered, Mr. Lehne seems to wear a second hat as head of the division of "regulatory affairs" at a big German law firm. See this press release from the law firm in question (in German).

I don't know what exactly the legal and ethical rules for lawyers are who want to work as lobbyists and politicians at the same time. My first impression is that these two functions are imcompatible. How are people supposed to be assured that there is no conflict of interest, if they don't know what clients he is serving in his function as head of "Regulatory Affairs"? How do we know that none of the Big Spender Alliance's many dollars are in the pocket of Mr. Lehne?

Getting the "Patentanwalt" thing wrong might be the smallest of the problems here.

I might add that I am in no way speaking for FFII here. It only happens to be my personal belief that any Member of Parliament has no business whatsoever selling advice about "Regulatory Affairs".

And, to make that perfectly clear, that belief has nothing to do with what Mr. Lehne might support or not support in the debate about software patents. I would have exactly the same problems with this kind of shady arrangement if he was on our side.

Posted by Karl-Friedrich Lenz at 11:16 PM

Dilbert on Patents and Pyramids

here

Posted by Karl-Friedrich Lenz at 10:39 PM

June 25, 2005

Brash, Suspect and Arrogant?

That is another way an anonymous ZDNet UK "Leader's" reading of "BSA".

Considering that the BS Alliance seems to be actively fixing the facts to suit their agenda, that might be better fitting than my proposal of "Big Spender Alliance".

Posted by Karl-Friedrich Lenz at 06:38 PM

Abolishing the Patent System

is not what opponents of software patents want, contrary to a somewhat misleading article by one W. David Gardner writing for Information Week here.

It would have made sense if he had written that FFII generally wants software patents in Europe abolished.

Posted by Karl-Friedrich Lenz at 06:25 PM

May 20, 2005

American Lobbyists Joining the Debate

Larry Lessig points to a new effort of an American lobby group led by Bruce Lehman to help legalizing software patents in Europe. Here is a copy of a comment I wrote at Lessig's site:

While I disagree with Mr. Lehman on software patents (I think they should be abolished immediately, worldwide), I am happy to find his organisation joining our opponents.

Usually, the American software industry lobbying for introducing changes that would result in a multibillion dollar license revenue stream to them from European industry has the good sense to hide behind puppets like the EICTA or Intellect, pretending it cares for the European industry.

Having outfits like Mr. Lehman's speak up for software patents is great for our side. I hope everyone involved in Europe notes their position clearly. Any proposal to do what America does or wants is DOA (dead on arrival) in European software patents politics. Even the few remaining fans of software patents need to pretend they don't want to copy American standards.

Maybe Mr. Lehman could use his Washington connections to have the American government hint at complaining under the TRIPS agreement if the European Parliament doesn't legalize software patents. That would completely nuke all support for forcing them down Europe's throat, while just getting the IIPI officially involved is certainly helpful, but not decisively so for our side.

See also this FFII page discussing Mr. Lehman's effort (mostly in German).

Comments and Trackbacks welcome at k.lenz.name/discuss.

Posted by Karl-Friedrich Lenz at 11:35 PM

May 19, 2005

Slashdot Non-Story

on a coming expert hearing on the debate over the software patent Directive project here.

The ZDNet article they quote gives the impression that Parliament has given the experts at the hearing a specific question on how to effectively limit patentability.

We will see what happens at that hearing soon enough. All experts get ten minutes speaking time each, see this program at the FFII web site.

It will be interesting to note what they said after we can actually know that. Everything said now is pure speculation.

While I am at it I might as well plug the upcoming FFII Brussels conference on June 1st. Anybody interested in information about upcoming events will find them at this FFII page.

Posted by Karl-Friedrich Lenz at 11:18 PM

May 16, 2005

TRIPS and European Software Patents Legislation

I have written a short opinion on the question above for FFII, which is available on the web here now.

Any opinions there are only my own and not arranged with FFII. They have another webpage on that question already here.

Posted by Karl-Friedrich Lenz at 05:53 PM

April 29, 2005

Can We Get That in Writing?

In the software patent Directive legislation procedure it is now the turn of Parliament to again adopt a set of reasonable amendments to be ignored, deleted, and countered with even more extreme wordings in Council.

FFII has a list of proposed amendments here.

I would like to make one proposal of my own.

We always hear from the other side that we are not supposed to panic, because nothing is supposed to change anyway by this Directive, which is only about clarifying the present state of the law.

That does not really convince me. However, we have right now as recital 14 of the Council text:

(14) The legal protection of computer-implemented inventions does not necessitate the creation of a separate body of law in place of the rules of national patent law. The rules of national patent law remain the essential basis for the legal protection of computer-implemented inventions. This Directive simply clarifies the present legal position with a view to securing legal certainty, transparency, and clarity of the law and avoiding any drift towards the patentability of unpatentable methods such as obvious or non-technical procedures and business methods.

I would like to amend this by adding one sentence:

"Nothing in this Directive shall be construed to extend patentability beyond the present legal position."

Assume for a moment that the Big Spender Alliance's efforts are successful and the Directive is not simply voted down completely in Parliament now, as well it should be in my opinion.

Then this is the very least our side should be able to get adopted.

After all, the other side has insisted time after time that they don't really want to change anything. All my proposal would do is to get that laid down in writing for later reference.

Somehow I am not ever so confident that the "no need to change anything" rhetoric would be still operative once we move on to the implementation legislation in 25 Member States.

Please direct comments and trackbacks to k.lenz.name/discuss, a site shadowing this blog and hidden from the comment spammers by keeping out of search engines.

Posted by Karl-Friedrich Lenz at 04:41 PM

April 23, 2005

Stupidity Pact

James Boyle has written about "deconstructing stupidity" in the Financial Times (found at Dan Gillmor's blog).

I don't like the "stupidity" frame. I think it is a mistake to assume that people promoting patent and copyright inflation are stupid. Even if it is no mistake, it is still rude and counterproductive to openly say so.

That said, I agree with most of the points in the article.

One is the criticism of "maximalism". That is an interesting term for the idea that "more intellectual property means more creativity".

And I completely agree with the position that getting intellectual property policy right needs to look for the proper balance. If the purpose is to get adequate incentives for creation of new works and inventions (as opposed to getting more fee turnover for patent attorneys or getting more control over distribution markets for record companies and movie studios), then the maximalist view is naive at best. At the same time it is damaging the intellectual property system, which leads to giving the "anti-patent" label right back to the maximalists.

Posted by Karl-Friedrich Lenz at 12:37 PM

April 16, 2005

European Competivity

An article in a new issue of IAM Magazine quotes several participants in a "pan-European IP summit" held last December in Brussels.

While they have been discussing many aspects of patent protection, several statements about European competivity stand out.

First there is the usual party line from Mike Barlow:

"Second, any European company that wants to compete globally is going to have to acquire patents because the US and Japan already offer strong patent protection for CII inventions. Without equivalent patent protection for CII inventions, European companies will effectively be giving away technology in Europe that is protected in other major markets in the world. In short, without equivalent patent protection in Europe, European high-tech companies will not be competing on a level playing field."

At least he got the memo and used the smokescreen of "CII" to conceal his wish of introducing software patents.

However, his framing of the competition issue is still rather lame.

Obviously, European companies, Asian college students, Microsoft and IBM can all file for patents in all parts of the world under exactly the same conditions. International treaties like TRIPS (Article 1 Paragraph 3) and the Paris Convention (Article 2) guarantee national treatment. That makes it impossible to have a "playing field" that is not exactly equal for everyone.

Another statement (not restricted to software patents) by Patrick Theunen is much more interesting:


"American and Japanese companies can file and prosecute patents with ease in their respective home markets. European companies cannot. This prevents many of them from building up effective European patent portfolios, undermining Europe's competetive position and forcing European companies to become increasingly dependent on their counterparts in the US and Japan."

The crucial words here are "home markets".

If there is any economic evidence for the theory that having patents in your home markets as opposed to having them in your competitors home market is an advantage, the other side finally has the first shadow of a point here.

I am not aware of any such economic evidence, however.

From a legal point of view, recognizing software patents in Tuvalu will worry an European company (especially a small startup) much less than having to deal with them at home, since any action would have to be brought before a court in Europe, and foreign patents have no force at home.

In contrast, the American industry is vulnerable to all sorts of blocking patent lawsuits brought by European companies in American courts, since America has gone ahead with software patents.

Therefore, from a legal point of view, it would seem to be against common sense to assume that having many potential problems with software patents at home is better than having less of them.

Of course, anyone proposing radical changes to the patent landscape based on such a theory would carry the burden of proof that having more protection at home is actually better than having more protection abroad.

And if that weird theory is correct, Europe would probably need to even surpass the present level of patent crazyness in America.

One more quote from Patrice Vidon:

"The facts are stark: if the European patenting environment is made more attractive, those who benefit will be non-Europeans. US and Japanese innovation will pour into the EU, with the likelihood that non-Europeans would quickly account for around 65% of all EU patenting activity. Our industries would become increasingly technologically dependent upon the US and Japan, with a net outflow in fees and royalties to non-European patent-holders."

That is exactly the kind of question one needs to address when talking about competivity in this context.

Pretending to worry about the competivity of the European software industry to push through changes that will result in a "net outflow in royaltees" is stabbing your own industry in the back.

It is nice to see that some patent lawyers actually place public interests before the own bottom line (M. Vidon is Vice President of CNIPA, Committee of the French National Institutes of Intellectual Property Attorneys).

Comments and trackbacks are welcome at the Google pagerank zero shadow site.

Posted by Karl-Friedrich Lenz at 02:32 PM

April 14, 2005

Savings on Patent Applications

Axel H. Horns is discussing if "patent work can be a commodity", while also making some remarks on trademark applications.

I think there is still a lot of potential for getting applications done more efficient.

With trademarks, registering a domain name is by about two orders of magnitude cheaper than registering trademarks. I don't see any reason why that need to be that way. Both systems reserve names. Abolish the monopoly for patent lawyers for filing applications and have the registering authorities take a crash course with the domain registrars. Then see prices going down fast as normal market forces kick in.

It might be open to doubt if many patent lawyers would support this proposal, however.

As for patent work, filing patent work is probably more routine work compared to actually litigating a case.

And for the case of software patents, new technical advances promise great leaps ahead in efficiency for preparing the filing documents.

A recent university project at MIT has created software capable of generating random computer science papers, which are actually accepted to conferences. See this Slashdot article.

Of course one of the first comments to this story said that this software could write patent applications as well.

So if patent lawyers get this new software, they might be able to streamline their work. The patent office probably won't notice.

If that happens, we get software writing software patents.

Probably someone somewhere is already preparing to file the software patent for the patent writing software, as long as it can't do so itself. And I would be far from objecting to that particular software patent. As I remarked before, one area where I think society should allow software patents is that of the business of patent lawyers.

Let them choke on their own medicine.

Comments and trackbacks are welcome at the Google pagerank zero shadow site.

Posted by Karl-Friedrich Lenz at 10:07 PM

April 08, 2005

Didn't Get the Memo

When I first saw the recent article by Mr. Lee on why software patents are the greatest thing since the common market for the EU published at the Linux Insider website, I was slightly confused.

I was mixing up "Linux Insider" with "Linux Journal".

I have not looked closely at the question if that "Linux Insider" website is an astroturf site run for the purpose of spreading propaganda against Open Source software while masquerading as part of the Open Source movement.

If so, it might be of interest whether their use of the "Linux" trademark is illegal or not.

As to the Lee article, it has already found a point for point rebuttal by Nelson Cruz here.

That leaves for me only the task of pointing out how this article helps our side of the debate. It seems that Mr. Lee didn't get the memo from his European friends on how to frame the talking points.

First, he starts out by admitting that the Directive is about legalizing software patents throughout the whole article.

That's a mistake.

When lobbying for software patents in Europe, the last thing you want to do is admit wanting them. You are supposed to hide your intentions behind the term "computer-implemented inventions", or better even "CII".

Then he leads off with another mistake, admitting that the Directive is about change.

The usual propaganda line is that the Directive is only necessary to "harmonize" and "clarify" the existing law.

That mistake is easy to make. The BSA puppet EICTA didn't get that memo as well.

And then Mr. Lee goes on saying that America has software patents, so Europe should get them too.

That, of course, invites unpleasant questions.

How many software patents are held by European companies as compared to IBM or Microsoft?

How exactly is the European software industry supposed to get more competetive by having to pay billions of dollars in royalties to American companies, or by getting shut down completely if they actually start eating away at Microsoft's market shares?

If you want to lobby for software patents in Europe, "America" is one dirty word you want to avoid completely. It won't do to have Europeans realize that introducing software patents makes about as much sense to us as introducing a flat tax of ten percent on all European software products, to be paid out to the BSA.

So, while this article was probably written to help the few remaining friends of software patents in Europe, it actually accomplishes the opposite.

Maybe "Linux Journal" should run it as well, along with Pfaffenberger's "The Coming Software Patent Crisis" (1999) and Pamela Jones' "EOF - Open Legal Research" (2004).

Comments and trackbacks are welcome at the Google pagerank zero shadow site.

Posted by Karl-Friedrich Lenz at 04:23 PM

Microsoft Own Goal

When writing about the unfortunate naming of the BS Alliance (that's "Big Spender" Alliance) recently, I remarked that for Microsoft

"lobbying for added software patent liability is about as smart as lobbying for software product liability would be."

Now John C. Dvorak says the same thing in a new PC Magazine article titled "Software Patents: Microsoft's Fatal Error".

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Posted by Karl-Friedrich Lenz at 03:19 PM

March 18, 2005

Big Spender Alliance

I don't know whose bright idea it was to call a lobbying outfit the "BS" Alliance. While English is not my first language, even I understand that "BS" has a somewhat unfriendly ring to it, with a meaning like "not trustworthy". Maybe this is some kind of high-level irony you don't get if you're not a native speaker.

Since I am always happy to help, I looked for a more positive reading for "BS" and came up with "Big Spender".

Which seems to be fitting in the context of talking about software patents. There are two reasons for this.

One is that our side will be outspent in the lobbying battle coming up in Parliament by at least a factor of one hundred. Since the Big Spender Alliance members can expect billions in new license revenue from their project of making several ten thousand illegally granted software patents enforcable, and since they already paid about 50.000 Euro in avarage for each of those at a grand cost of 50.000 multiplied by 30.000 Euro (that seems to be 1.500.000.000, or 1.5 billion, most of which has been flowing in the pockets of European patent attorneys, who love software patents for a reason), the Big Spender Alliance surely will have a couple of milllion scheduled for their lobbying efforts.

In contrast, our side is an effort driven largely by volunteers.

Exact figures are not available for both sides of the lobbying effort at this point. The FFII has laid open past contributions and received 78164.07 Euro in 2004. If you want to give that number a boost, the donating page is here.

In contrast, the Big Spender Alliance does not disclose how much their budget for the European Software patent project is. At least I could not find any such disclosure on the "EU Policy" website of the BS Alliance.

The same seems to be true of the Campaign for Creativity astroturf site which is working exclusively on spending the BS Alliance funds with a view on figuring out yet another way around the normal rules to somehow force software patents down Europe's throat against the will of most Parliaments. They say that they "respect the fact that not all donors want this information to be public".

Therefore, I can only guess on how much more funds they have than we. But a factor of one hundred would leave them with still less than 10 million, based on the above figure for the 2004 FFII budget. Anyway, it doesn't ever matter so much. My point is that our side is outspent by a large factor and not that it is exactly a factor of 100.

Under the logic of many IP extremists, that makes their side one hundred times better, since nothing of value can be created without an financial incentive.

On the other hand, some people might doubt that logic in the context of a political debate, where passion and actually believing in what you say will beat a fake opinion sold to the highest bidder any time of the day.

So I am not sure of what to make of the first reason to call them the Big Spender Alliance. This might actually help our side.

The other reason for the "Big Spender" label comes from something Brad Smith (Microsoft General Counsel) recently said. It seems Microsoft is spending 100 million dollars a year defending against software patents. Since then, they have settled a lawsuit with Burst.com with a payment of 60 million for that case alone.

Therefore, asking for more liability from European software patents might be not ever so smart a move even for Microsoft. Of course they might hope to receive more license revenue than pay, and maybe get some extra bonus in being able to point out that "Indemnification Becomes Open Source's Nightmare and Microsoft's Blessing".

However, it might well happen that even with that figured in, lobbying for added software patent liability is about as smart as lobbying for software product liability would be.

Bruce Schneier has been calling for stronger liability for faulty software years ago. Of course, it would make no sense whatsoever for Microsoft to support that particular position.

So why do they want to spend lots of money for the privilege of spending even more money to the likes of Burst and Eolas and every other patent holder lusting for a slice out of their deep pockets?

It doesn't make sense to me. But then again, I wouldn't have come up with the "BS" Alliance naming in the first place.

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Posted by Karl-Friedrich Lenz at 08:06 PM

March 13, 2005

A Long List of Questions

about the "approval" of a common position in last Monday's Council session is posted at this FFII page.

One might add the question what happens if the Council clearly violates the Rules of Procedure in so many ways as in last Monday's session. This might be a question for the Court of Justice later on, or even for Parliament right now.

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Posted by Karl-Friedrich Lenz at 10:05 AM

March 09, 2005

Aussi Les Autres

Since I have been following questions of procedure in the Council for some time, I was interested in how exactly A-items were approved in Monday’s Council meeting.

Specifically I wanted to find out if the Council acted under the weird theory that they can approve things without actually voting on them or if there was a vote on A-points.

So I looked at the transcript to try figuring out what happened.

The first candidate for something like a vote is the place where the Presidency says


“Maintenant j'invite le Conseil à adopter aussi les autres points de la liste points A. Tel est le cas? Je vous en remercie, les points A sont adoptés.”

at the end of the transcript. In my translation:

“Now I call on the Council to approve also the other A-points. Yes? Thank you, the A-points are adopted.”

This might be reasonably understood as a vote. Everyone keeping quiet in that second might be assumed to have approved under Number 16 of Annex IV of the Rules of Procedure, which says:

16. Unless indicated otherwise by the Presidency, delegations shall refrain from taking the floor when in agreement with a particular proposal; in this case silence will be taken as agreement in principle.

The problem here however lies in the two little words “aussi” and “autres”.

They clearly indicate that the vote in this particular moment was only about “other” A-items no one really cares much about.

In contrast, the crucial vote on the software patent “political agreement” must be searched for somewhere else.

However, this does teach us one important fact about the Luxembourg Presidency’s idea of the rules of procedure.

Their idea is obviously that a vote is to be taken on A-points. No discussion does not mean no vote. I am pleased to see them agree with my reasoning against the van Gennip theory.

So where is the vote on the software patent issue?

Anybody can help me find that?

Or has the Luxembourg Presidency forgotten to take that vote?

Somehow I like the ring of that question. So, again, has the Luxembourg Presidency somehow forgotten to call for that vote? Do they think that such a vote was necessary only for the “other” A-points? If so, why?

One possible candidate would be this moment earlier on.


Puis-je conclure que toutes les délégations a l'exception de l'Espagne, qui vote contre, et de l'Autriche, de la Belgique et de l'Italie, qui s'abstiennent, peuvent accepter le projet de proposition commune, et d'exposé des motifs l'accompagnant tels que contenus dans les documents devant vous. Le Conseil peut-il accepter également d'inscrire a son procès-verbal les déclarations de la Commission ainsi que les déclarations des délégations hongroises, lettones, néerlandaises, polonaises et danoises je crois, telles qu'elles vont figurer au document sur la table. Hmm. Egalement un statement de la part de Chypre.

Again in my translation:


"Can I conclude that all delegations with the exception of Spain, which votes against, and Austria, Belgium and Italy, which abstain, can accept the project of the common position and the statements of reasons that are laid down in the documents before you. Can the Council also accept adding to its minutes declarations by the Commission and the delegations of Hungary,. Latvia, the Netherlands, Poland, and Denmark, as they are included in the document on the table. Hmmm. Also from Cyprus."

The problem here is that in that moment the Presidency only stated the result they expected from a possible vote, without any input whatsoever from other Member States.

That is different from taking a vote and noting the actual result. It is also quite different from what happened with the other A-points at the end of the transcript. If those points no one ever heard about deserve asking back (tel est le cas?), then obviously this hotly contested issue would deserve at least the same level of giving Member States a chance to actually vote one way or another.

Note also that it is in any case impossible to invoke the rule number 16 in Annex 4 of the Rules of Procedure (see above) to explain the vote of Spain (against) and Austria, Belgium and Italy (abstention). These must be declared in some way, if they should actually exist.

Of course, maybe Mr. Krecké possesses some extraordinary telepathic powers we don’t know about. He might be able to read the minds of all other delegates. In that case, their vote would reach him in this way, and he was not just stating his personal opinion about the result of a non-existing vote.

It would also be interesting to find out if at that particular moment the results of a vote were "indicated by visual means" as required by Article 8 Paragraph 1 b) of the Rules of Procedure.

If we rule out the telepathy possibility, I would like to ask some simple questions.

When and how exactly did Spain vote against this proposal in Monday’s Council session?

When and how exactly did Austria, Belgium and Italy abstain from their vote in Monday’s Council session?

When and how exactly did Poland, Germany, the Netherlands and Denmark vote for this proposal in Monday’s session?

The answer to these questions does not seem to be easy.

They are crucial however for the further debate in those Member States where the delegates are counted to have voted against the expressly stated wish of national Parliaments.

A real vote for this proposal would be a severe violation of loyalty to several Member States’ Parliaments. Those Parliaments and the citizens of the Member States who had their votes counted on the opposite side of what they wanted have a right to know if there was such a vote or not, and what exactly is supposed to constitute the vote in question.

This is not an American Presidential election. While there may be some urgent need to improve the level of democracy at the EU level, all Member States are democratic. When national Parliaments and the citizens they represent hear that their delegates’ votes were counted on the opposite side they wanted them counted, there should be consequences. And for the very least there should be an investigation of how exactly this fabrication of a fictitious majority happened, to prevent such an event from occurring again.

And if there is no answer to these questions, what exactly is the reason to assume that Council has “approved” anything on Monday?

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Posted by Karl-Friedrich Lenz at 09:09 PM

March 08, 2005

Luxembourg Presidency Making Up Some New Rules

As I had understood the "unwritten rules" of Council procedure, Member States have the right to request that an A-item is taken from the agenda, but are not supposed to make use of that right, so as to keep up the custom of deciding first and translating later.

Now the Luxembourg Presidency has made up a new unwritten rule on the fly. While acknowledging that multiple Member States have asked for a B-point, they decided to reject that demand.

That is quite obviously not something the Presidency can decide alone.

Once the "unwritten rule" against demanding a new debate is not followed by even one Member State, there needs to be a vote on keeping the A-item on the agenda.

No such vote was held.

Therefore, clearly the Luxembourg Presidency has been making up some new unwritten rules. One might understand the new precedent as "A-items are only removed from the agenda if the Presidency happens to wish to follow a Member State request."

Of course nothing else is to be expected from allowing "unwritten rules" in the first place. Everybody invents their own set, and chaos is the result.

So what?

For starters, this is one more reason for Parliament to reject this proposal decisively. Not that there is a lack of reasons to do so in the first place.

Next, this particular abuse of the rules of procedure will make a great textbook example for the lack of democracy in the EU. While the Luxembourg Presidency quoted some vague "institutional reasons" for their position, their reasoning actually serves to discredit the instition of the Council, and the whole EU project with it.

And yes, it will be all the more important to ask Member States governments whose votes are recorded as supporting this elsewhere if they really support the common position. And in the case of Germany and other Member States, the obvious follow up question would be how they justify kicking their national Parliament's resolutions squarely in the face.


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Posted by Karl-Friedrich Lenz at 01:52 AM

March 04, 2005

Qui Tacit

consentire videtur. Latin proverb, meaning that a person who keeps silent is presumed to give consent.

That is the answer to the expected behaviour of several delegates to the Council meeting next Monday, where we will again see a last-minute stealthy introduction of the software patent A-item. It just keeps bouncing back on the agenda.

As I said before, if Member States Governments don't get a chance to vote for or against the proposal in Council, the logical thing to do would be to ask them elsewhere.

Now, in Germany that has happened.

Member of Parliament Dr. Krings has said in a comment about the Commission's refusal to restart the process:

"Mrs. Zypries (German Minister of Justice) needs to finally come clear about how she intends to act in Council and if she is feeling stronger obliged to the EU Commission or to the unanimous vote of the German Parliament"

(Translation from German original by me).

As far as I know, there is still no clear answer to this question.

And I understand fully that Mrs. Zypries and other of her colleagues in the same position wish to avoid that answer.

She can't very well step up to the plate and tell the German Parliament that she is not interested in following any of their unanimous resolutions.

On the other hand, if she does follow the clearly expressed will of Parliament, that would set an extremely dangerous precedent of ignoring unwritten rules governing the Council procedure. Of course I am all for setting that precedent, since the rule in question is stupid as well as unwritten, but for some strange reason many of the diplomats actually running the Council still want to stick to their Old Europe antidemocratic style. They want to give the Member State holding the Council presidency the power to push through an A-item even if everyone else is opposed at the time of the adoption. They want to vote without voting.

Hey, Council, why don't you give actually following your own written rules a try in this extraordinary case? The world won't collapse if you take a few seconds to give each delegate a chance to vote.

So, under the current weird unwritten Council rules, Mrs. Zypries is doomed either way. Whatever she does, she will strongly offend someone.

Therefore, the easiest way might seem to do nothing. Just don't answer questions like that of Dr. Krings and hope the whole problem just goes away somehow.

Unfortunately, in Council that is not an option.

If she and other Governments do nothing in Council next Monday, their votes will be counted as for finally adopting the A-item.

Even if there won't be a vote, votes will be counted, and those Member States who remain silent will be counted for the proposal.

Not answering the question is an answer as well. And that answer means "never mind what Parliament says".

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Posted by Karl-Friedrich Lenz at 12:06 PM

February 26, 2005

Learn Writing

There seems to be some criticism floating around against Poland’s opposition to waving through the „political agreement“ on software patents in Council.

That criticism says that Poland should observe „unwritten rules“ of the Council. The „gentlemen“ in the Council are used to agreeing on a text in one language and translating it later.

Well, my message to these „gentlemen“ is that they should consider learning writing, or maybe find someone who has that ability.

The Council is a bit too important to be run under a set of „unwritten“ rules that differ from those laid down in the rules of procedure.

Of course one could imagine a rule that said „political agreements can only be reversed by unanimous decision“. That would be the negative consensus model the WTO employs in the Dispute Solution Understanding. Blocking the establishment of a panel or the adoption of a report requires unanimity of all WTO members (Article 6 Paragraph 1 and 16 Paragraph 4 DSU). Obviously that helps getting things adopted.

Under the „unwritten rules“, a political agreement can be adopted against the will of all EU Member States except the one holding the presidency. If Luxembourg puts it on the agenda somewhere, no one else can object.

That may or may not be a reasonable way to proceed. However, it is definitely not what the current rules of procedure say.

If someone wants to run the Council by a set of unwritten rules not incorporated in the current rules of procedure, they need to observe the necessary steps to change the written rules.

That is only common sense. Anybody who insists on running the Council based on a set of „unwritten rules“ really has no business influencing any legislation procedure in the first place. Legislation is writing rules. If you can’t do that even for your own procedure, then you clearly are not qualified to write rules everybody else is supposed to follow.

Assuming that running the Council by unwritten rules is acceptable, everybody could make up their own set of unwritten rules. That could be fun.

For example, the United Kingdom might make up a rule that they won’t support any proposal at all until such time as their issue X is resolved in a way they want. (This has actually happened before).

Or Poland and other states that have a language not used in the „political agreement“ might make up a rule that they won’t support any proposal at all before they see it translated in their own language. That would have the added benefit of being what the current rules of procedure actually say now. To quote:

Except as otherwise decided unanimously by the Council on grounds of urgency, the Council shall deliberate and take decisions only on the basis of documents and drafts drawn up in the languages specified in the rules in force governing the languages. (Article 14, Paragraph 1)

The Council confirms that present practice whereby the texts serving as a basis for its deliberations are drawn up in all the languages will continue to apply (Annex III statement m)“

I might be wrong, however. Running the Council by unwritten rules might actually be a great idea.

That is, if your objective is to write one set of rules for software patents designed to fool the public that you won’t allow them, and leave a few loopholes for the „gentlemen“ in the patent offices to grant them anyway based on another set of „unwritten rules“.

If the point of the whole exercise is only to get those „gentlemen“ a larger loophole than the current „as such“, it might actually be just fitting to have the proposal adopted in Council relying on „unwritten rules“.

Update: "The rules in force governing the languages" referred to in Article 14 of the Council rules of procedure cited above are laid down in Regulation 1/1958, as amended by the act of accession of 10 new member states. The latest version is published in the Official Journal L 236 of September 23, 2003, on page 791. The present version is:

"Article 1

The official languages and the working languages of the institutions of the Union shall be Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish."

Article 4

Regulations and other documents of general application shall be drafted in the twenty official languages."

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Posted by Karl-Friedrich Lenz at 11:55 AM

February 13, 2005

Protectionism

Axel H. Horns discusses the fact that introducing software patents in Europe would harm the European software industry by requiring them to pay large royalties to American patent holders.
It is remarkable that he doesn’t try to conceal or dispute that fact. He completely agrees with FFII that most existing software patents are not held by European companies.

That is in contrast to the usual fairy tale approach we get from the enemies of freedom. Usually they want people to believe that allowing no software patents somehow economically harms the European software industry. Politicians like Arlene McCarthy have been buying this particular propaganda spin, which is based on equating legalizing software patents in Europe and European companies having software patents. Once you realize there is a large difference here, this whole deception falls apart.

Let’s make that clear again: Once we legalize software patents, we can expect large sums of royalties flowing from European to American companies.

However, in Horns’ view, that is not a problem. Selling out the European industry to American interests is necessary, since not doing so would be “protectionism”.

I have some sympathy for that line of reasoning. Actually I don’t like protectionism. For example, I am opposed to the clearly protectionist Articles 4 to 6 in the television directive that require European television stations to broadcast European movies over 50 percent of their scheduled time.

However, the level of patent protection has nothing to do with protectionism. Nobody in this debate calls for discrimination against non-European patent holders.

One could imagine an European patent system that limits patents awarded to non-European companies to 50 percent of all, as in the model of the television directive. This would obviously violate all sorts of international treaties. But yes, that would be protectionism.

But, again, nobody proposes protectionist discrimination.

All we want is that people understand the fact even Horns doesn’t dispute.

Strictly from an economic point of view, Europe would be shooting its own foot by legalizing software patents. Don’t confuse allowing software patents with having them.

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Posted by Karl-Friedrich Lenz at 10:31 AM

February 11, 2005

Ask Them Elsewhere

The Dutch Parliament adopted a motion to prevent the coming A-buse of the Councils procedure rules next week. They say that the Council should at least wait for the Commission decision on Parliament's request to restart the legislation.

This time around, the Dutch minister in charge actually promised to follow that motion. Her weird theory that the Dutch position doesn't matter since there won't be a vote anyway seems to have been retired. Of course that assumes that she has not been lying to the Dutch Parliament when making that promise. We will see soon enough if that assumption is correct.

This clearly shows that the Members States' positions do matter in any stage of the procedure. Again, A-items means voting without discussion, not voting without voting. With 25 Member States, taking a vote requires about 50 seconds, counting 2 seconds per Member State.

Most A-items really don't require further discussion, since the political agreement actually exists. With those, it clearly makes sense to skip a formal vote and save those 50 seconds in the process.

In contrast, in this case, the "political agreement" does not really exist. It is pure fiction. Once you call a vote, multiple Member States needed for a majority would vote against.

Therefore, in this case the whole point of avoiding the vote is not the legitimate reason of saving time, but the deeply disturbing wish to fabricate a majority where there is none.

If there is a "confirmation without vote" under this theory some time later, that means that Member States' representatives won't get a chance to state their position at that particular Council meeting.

In that case, it would seem to make sense to ask them elsewhere.

For example, in the German Parliament's session scheduled for the same day (February 17th) of the Council meeting the A-buse is supposed to happen, someone might ask the German government:

"I hear that you don't get a chance to vote on the Directive in today's Council meeting. Just for the record: Is the German Government for or against this proposal?"

That would open interesting possibilities to contrast the answer to that question with what will be recorded in the minutes of the Council meeting in question later.

Of course, somebody might ask other Governments who pretend they don't get a chance to state their position in Council elsewhere as well.

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Posted by Karl-Friedrich Lenz at 12:38 PM

February 03, 2005

Self-Destruct

The Compact Oxford English Dictionary defines "self-destruct" as

"explode or disintegrate automatically, having been preset to do so."

The patent system is preset to explode by those who want to remove all limits to patentability.

Those are the real "anti-patent activists". Our side is trying to preserve some of the legitimacy the system currently still enjoys.

The other side is the one that is playing with matches at the gasoline stand.

Calling for meaningful limits to patentability is as "anti-patent" as calling for meaningful limits to aggressive warfare is "anti-american".

Of course, possibly some people opposed to software patents are opposed to the whole patent system even now. And if the bright idea of removing all limits to the system finally succeeds one way or the other, we might see the whole weight of opposition really directed against the patent system as such.

Be careful what you wish for.

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Posted by Karl-Friedrich Lenz at 02:53 PM

Give me an A

The European Parliament has made a rather clear statement that the harmful and obnoxious proposal for legalizing software patents waiting for approval in the Council is headed directly for the nearest dustbin if it actually makes it to Parliament.

I want to highlight one point from the FFII press release.

The European Commissioner for the Internal Market, Charles McCreevy, had in the morning assured the JURI Committee that the Council would finally adopt its beleaguered Common Position text. He announced that "the Luxembourg Presidency has now received written assurances concerning the re-instatement of this issue as an A point at a forthcoming Council". Given that A points are to be adopted without discussion, this left no possibilities for renewed negotiations in the Council. Consequently, the Parliament apparently decided that a restart was the best solution.

As I said before, Parliament is more likely to just completely reject a radical position that takes up none of Parliament's amendments than a more balanced one. Therefore, while it is an Abuse of the rules of procedure to pretend there is no need for more discussion to avoid finding out that no majority exists, and a complete joke trying to adopt something without actually voting on it, pushing the proposal through Council in this rather dubious way actually seems to help our side. Note the large A here, and note that "Abuse" fits nicely on a balloon or flyer.

So maybe everybody should join the chorus of those chanting "give me an A". That will probably happen anyway now that it is clear that it doesn't matter ever so much.

It will make a great textbook example for the failure of basic democratic values in the EU Council procedure. No one actually voting, everybody pretending that there is a majority where there is none, and votes recorded against the clearly declared will of national Parliaments. It can't get much better than that.

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Posted by Karl-Friedrich Lenz at 10:20 AM

January 20, 2005

Nothing Much to Add

The plans to "approve without vote" the May 2004 political agreement on software patents as an A-item in the Fishery Council seem to have bounced right back, after having been delayed once by Poland. See this FFII page.

So maybe the patent inflationists will be able to get away with pretending they still have a majority in Council by relying on the beautiful strategy of voting without voting.

Regarding the democracy deficit associated with this procedure, I don't have much to add to earlier statements here, here, here, and here.

While that would show clearly the deplorable state of democracy in the EU Council, it does not mean ever so much either way for the software patent proposal.

The Council is not about to approve Parliament's first reading. So they might as well go ahead with the radical "political agreement". That gives opponents of the whole sorry project (like me) more chances to call for a complete rejection in Parliament.

I might add that I speak in no way for FFII here. This is only my humble opinion.

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Posted by Karl-Friedrich Lenz at 09:11 PM | TrackBack

January 19, 2005

Patent Terrorists?

There are some signals from the BSA and the PFF Center for the Study of Intellectual Property that even in their opinion there might be possibly something like a problem with software patents in America.

A recent BSA position paper "Intellectual Property in the 21st Century" is critical of patent holders who produce nothing but lawsuits. They see a problem with that:


(page 13 of the paper)"But the increased reliance of patents has also resulted
in a number of practices that can cause disruptions. First, some people have accumulated patent portfolios not to further innovation and development of new products, but to turn these portfolios into profit centers. These individuals have used their patents to compel others to license technologies from them, or to take licenses in their patents, under threat of litigation. In some instances, these patents are used for strictly tactical purposes, never intended for commercialization of inventions. Finally, the threat of litigation has caused some technology companies to make decisions based on the cost of such litigation, rather than the value of the underlying technology."

That is a radical anti-patent position. Under current worldwide patent law standards, there is no requirement to use or even be able to use patented technology yourself. You can have ideas and have them protected without owning production facilities to actually use them yourself.

I don’t agree with that position. If you think patents are a good idea in the first place (something I am agnostic about in general and highly critical of for software), then this option should be open for everybody willing to pay the entrance fee at the patent office. The opposite position would mean that patents are only for the big players. That might suit the members of the BSA, but I don’t think it would be a fair system.

And Patrick Ross at the PFF Center for the Study of Intellectual Property weblog also writes something in this direction.

"I like the phrase "patent terrorist," because these companies do seek to cause terror. A closer analogy might be a mafia shakedown artist, however, because terrorists tend to cause terror for its own sake, whereas an extortionist has a price at which they'll ensure you no further trouble. Still, the "patent terrorist" phrase has been around a few years now, and seems to be gaining a foothold in the general lexicon, which will make life difficult for Reuters reporters. They'll have to refer to "alleged patent terrorists."

Again, I don’t agree with that. “Terrorist” is a word definitely not suited to the situation. If someone threatens a patent lawsuit without producing anything himself, that might be extortion or fraud under certain circumstances. For example, Ian Clarke is talking about "extortion" in the context of a recent software patent claim, and in a German case of a “patent” on the use of car license plate codes (like “M” for Munich) as part of domain names, the patent holder was faced with criminal fraud charges. But terrorism is something very different.

If you want colorful but misleading rhetoric for abuses and overextension of the patent system, words like “slave trader” are perfectly well suited to the occasion.

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Posted by Karl-Friedrich Lenz at 09:40 PM | TrackBack

January 05, 2005

Law and Reality

FFII is linking to a cute little propaganda piece in IAM Mag by one Craig Opperman titled "The folly of legislating against software patents".

Opperman tells us that there is no point in resisting software patents. In reality, patent lawyers will work around any restrictions anyway. To quote:

Effectively, the current situation is uncertain, with the law prohibiting, but reality allowing software and business-method patents."

That confirms what our side says all the time. European patent lawyers don't apply existing patent laws, but some sort of very different "reality"-based standard of patentability. Thanks for clearing that up.

The problem with that kind of attitude is obvious.

It is not the job of patent lawyers to supplement their judgements for that of democratically elected Parliaments. If Opperman is right, and I don't doubt that he is right, the consequence would need to be assuring that patent lawyers follow the law like everyone else, and stop inventing parallel "realities" to work around existing clear restrictions.

As long as a patent is only granted and not yet enforced against some third party, that is rather difficult, since there is no real opposition built into the process. The public interest in stopping bogus patents from issuing in the first place is represented only very weakly. Patent offices don't have much interest in preventing patents from issuing.

However, the "realities" change dramatically once you go to court against a real opponent who has an own interest in fighting and will pay his overpriced lawyers as much or even more than the patent holder. In that instant suddenly it matters very much what the "law" is.

The patent holder going to court and saying "my software patent is prohibited by law, but still exists in reality" needs to change his lawyer. He would stand no chance of winning.

And exactly that is the reason why the other side needs to change the existing "law prohibiting software patents". Without that change, all the software patents granted based on reality, not law, will not be enforcable.

Posted by Karl-Friedrich Lenz at 03:10 PM | TrackBack

December 23, 2004

Learning from EICTA

EICTA has issued a critical statement ("extreme disappointment") on the latest decision of the Council not to decide anything now here.

There are several interesting points one can learn from in this statement.

For one, the last paragraph of the short statement said that

"Instead of becoming the world's most competitive knowledge-based economy by 2010, we run the risk of being caught up in a negative spiral where other regions can take advantage of European investment in innovation, while European companies in their home markets are weakened by imitation."

"Weakened by imitation". So in the view of the EICTA, the patent law we have now in Europe does not exclude said imitation, but the Directive the EICTA wants would do so.

That in turn contradicts the usual party line offered by the Commission in the misleading reasons to their proposal that this Directive is not about changing current law. I have debunked this party line here, but I am happy to find an unlikely ally in this EICTA statement that clearly indicates that the other side wants change, not harmonisation.

As I said at the time:

"If nothing will be made patentable which is not already patentable, then your proposal is doing exactly nothing at all and should be dumped because it adds to the confusion, rather than reducing it."

And as I might add now in response to the "extreme disappointment" of EICTA: If nothing is supposed to change, why is there any reason to rush keeping things exactly as they are right now?

The other interesting question is why the EICTA tries to sell out the European industry it is supposed to represent. It is not "European companies" who "are weakened by imitation". Everybody knows that the bulk of the software patents issued illegally by the EPO are _not_ owned by European but by American and Japanese companies. These would receive large sums in royalty payments from the European industry if these patents became actually enforcable.

As I said before:

"In practice, most of the illegally granted European software patents are owned by American companies. The practical effect of McCarthy's proposal will be a large net flow of license payments from the European to the American software industry.

I fail to see how that will contribute to the competitiveness of the European industry."

I don't know why EICTA wants to damage the competitiveness of the Europan industry. Maybe the reason is that EICTA is representing well-known "European" companies like Microsoft, IBM and Sony.

While assuring a large new flow of royalty payments from European to American and Japanese software companies doesn't make much sense if you are really fighting for the European industry's interests, that looks somewhat different if you are taking money from Microsoft and IBM.

The EICTA needs to kick out companies not based in Europe immediately if it wants any credibility for its claim to speak for the "European" industry.

Update: The same lessons can be learned from "Intellect", which is a package that has "trade association for the UK hi-tech industry" on the label and Microsoft and IBM as members.

They are also strongly supporting my assertion that the Directive is about radically changing European patent law. And just like EICTA they are "dismayed".

Director general John Higgins remarks that without the Directive "the UK's individual inventors, SMEs and large multinationals, will be unable to protect their inventions".

Maybe someone should ask him why "large multinationals" like IBM and Microsoft are allowed to influence the voice of the "UK hi-tech industry". And when did Microsoft become an "UK" multinational? Somehow I missed their move to London.

Sounds like a built-in conflict of interest to me.

Posted by Karl-Friedrich Lenz at 10:30 PM | TrackBack

December 21, 2004

Fictitious Approval

Usually, when someone doesn't have a majority, they refrain from calling a vote.

For example, the American government had no majority for their war against Iraq in the UN Security Council. Barroso had no majority in the European Parliament for his first list of Commissioners. In both cases there was no vote.

However, if one really understands the Council rules of procedure, there can be an approving vote without a majority in Council at the time of that vote. Seems to have something to do with translations.

Of course, the theory of "decide now, translate later" as an explanation for limiting Member States rights under Article 3, Paragraph 8 of the Rules of Procedure is entirely incompatible with Article 14 of said Rules.

Having an approval without a vote is somewhat surprising for those lacking the deeper understanding of the Rules gained by not bothering to actually look at them. Exactly what kind of magic produces an approval without a majority?

The trick is not to call a vote in the first place. If you start actually counting votes, you might end up with having delegations state their real will.

Of course, if that happens, the "approval" in question is purely fictitious.

Logically, there are exactly two possibilities. Either the votes for and against of every delegation are taken and duly recorded, producing a result with some kind of legitimacy.

Or you don't call a vote and just rely on the fiction that there is a majority without bothering to check what the delegations want.

The German Federal Constitutional Court has annulled a law for this kind of magical creation of non-existent majorities in this 2002 decision.

Posted by Karl-Friedrich Lenz at 10:48 AM | TrackBack

December 19, 2004

Ms. van Gennip's Weird Theory

Ms. van Gennip is the Dutch Secretary of State of Economical Affairs. According to this EDRI report, she declared to the Dutch Parliament that

Since there will be no vote on the A-item the Netherlands don't have to abstain from voting.

If there will be no vote, how exactly is the proposal supposed to receive "approval without discussion" as stated in Article 3 Paragraph 6 as the meaning of "Part A" items?

If there is no vote, there is no approval. "Part A" means "without discussion", not "without vote". And using this as an excuse for acting against the declared will of the Dutch Parliament is rather weird.

Then again, at this level of contempt for basic values of democracy, maybe one should not expect anything else.

Of course this hotly contested issue needs to be voted on, even if there is "no discussion" on the vote. If it is not, then there is no basis whatsoever for assuming that the Council has "formally adopted" anything.

And it takes only one Member State to force a vote anyway (Article 3 Paragraph 8).

So even if "formal adoption" means "adoption while nobody actually votes on the proposal" in Ms. Gennip's world, we might very well see a vote anyway next week.

That should happen independent of any merit of this proposal, and even if there is actually a majority for it. "Approval without vote" is a deeply disturbing perversion of democratic principles, and logically impossible as well.

Bonus quote from the December 7 speech by Ambassador of the European Commission to the United States:


"We need local democracy. We need national democracy. But if we are to manage the forces of globalization, we also now need supranational democracy. The European Union is not perfect, but it is one of the best attempts yet at supranational democracy, anywhere in the world."

Yes. We need supranational democracy. But that is impossible without actually voting on proposals if you want to adopt them.

Posted by Karl-Friedrich Lenz at 08:15 PM | TrackBack

EU Democracy

The most important legislator in the EU is the Council. Parliament has some rights, but much less than in any Member State. The legislative center of power is in the Council.

That is somewhat problematic. Where is the democratic legitimacy of Council decisions?

The only answer possible is that the representatives of the Member States in the Council are elected in their respective national Parliaments.

That means there is zero democratic legitimacy for any Council decision that is taken against the expressly stated will of Member States' Parliaments.

This should really be only a theoretical consideration. Surely, one should assume, Member States delegates at the Council will respect their respective Parliament's decisions.

However, in the case of the harmful and obnoxious proposal for a software patent Directive there is a real chance that next Tuesday the Council will take a decision that is clearly contradicting Member States' Parliaments positions.

This is an outrage. The democratic legitimacy of legislation by Council beuraucrats is shaky to begin with. But adopting positions in clear opposition to the declared will of the democratic representatives of the Member States' people would be a new low point.

This kind of scandal is the last thing the EU needs in this critical time frame where referendums on the EU Constitution are scheduled in multiple Member States.

So what excuse have the enemies of democracy for this kind of behaviour?

It seems they are hiding behind a rule that does not exist and that would make the whole Rules of Procedure of the Council meaningless if it did.

Addressing this requires a seperate post.

Posted by Karl-Friedrich Lenz at 09:46 AM | TrackBack

December 04, 2004

Wikinews Launch

reported here and at Slashdot.

The Wikinews site will probably not be perfect from its first day on.

However, I think the wiki model can work just fine for news reporting. For example, the FFII wiki for software patent news catches most of the important developments, proving that this can be a valuable ressource.

Posted by Karl-Friedrich Lenz at 09:38 AM | TrackBack

December 03, 2004

Brazil AIDS Patents Violations

Some of the enemies of freedom routinely accuse people like me of being opposed to the patent system as such (anti-patent), just because we ask for meaningful limits to patentability. That is in most cases a misrepresentation which deserves striking back with some colorful rhetoric.

Theoretically, it is quite possible to oppose only patents on software, while not yet asking for complete wholesale abolition of the patent system in other areas. That would be my position now, since I am agnostic on the question if the patent system causes more harm than good in its traditional areas.

However, I definitely support Brazil's decision to break patents on AIDS medication reported in this BBC article. In the conflict between saving lives and saving profits, count me on the side of the patients, not the patents.

The IPKat comments on this question like this:

Certainly there’s merit in making medicine available to those that desperately need it, but if this action stops future medical innovations from finding their way to Brazil, this could be an own-goal.

I don't understand that. "Future medical innovations" will be disclosed in patents worldwide. From there Brazil or any other nation can take the information. So how are the patent holders supposed to "stop" this?

Link credit: BoingBoing.

Posted by Karl-Friedrich Lenz at 10:25 PM | TrackBack

November 23, 2004

Torvalds Appeal

Linus Torvalds, Michael Widenius and Rasmus Lerdorf appeal to the EU Council regarding the software patent directive project.


Posted by Karl-Friedrich Lenz at 09:33 PM | TrackBack

November 22, 2004

European IP Blogs

Axel Horns is wondering if there are any more European IP blogs that are not yet found in his blogroll.

I think that IPKat, Stefan Bechtold's "Bechtold Blog" and "Trusted Computing Blog", Andreas Bovens' "chosaq" and Walter Simon might qualify as possible answers to that question.

And Cory Doctorow is now based in London, so his IP related entries on BoingBoing might be mentioned as at least partly European as well.

Posted by Karl-Friedrich Lenz at 04:03 PM | TrackBack

November 19, 2004

A-Items

Axel H. Horns is looking for the EU Council's rules of procedure to find out what they say about A-items.

These rules are here.

I have discussed them earlier on this FFII page. From my statement there:

"The Irish proposal will be called on the next meeting as an A-item. Each delegation can oppose that, and then a majority is needed to keep the point on the agenda (Art 3 Par 8). Moreover, each delegation still has the right to express an opinion at the time of the approval of these items and have statements included in the minutes (Art 3 Par 6).

The crucial question is whether there really is a majority in the Council for the Irish proposal or whether that majority was only fabricated by creative voting arrangements by the Presidency. This is a political question. If there is a blocking minority against the proposal the rules of procedure give enough ways to express it."

My analysis above seems to be confirmed by this "preliminary opinion" of Professor Dr. Antonio Estrella (Universidad Carlos III de Madrid) and Associated Professor Dr. Angeles Mazuelos (Universidad Autonoma de Madrid), coordinated by Professor Dr. Luis Fajardo Lopez (Universidad Nacional de Educacion a Distancia).

Posted by Karl-Friedrich Lenz at 05:43 PM | TrackBack

October 20, 2004

No Software Patents Website

Florian Mueller has released a website "nosoftwarepatents.com" which explains the reasons for the opposition to legalizing software patents in Europe.

Posted by Karl-Friedrich Lenz at 08:20 PM | TrackBack

October 13, 2004

Search for the "Good Patent"

One question to be discussed at the FFII "Regulating Knowledge" conference in Brussels next month will be if there is one real world example of a software patent that may actually be described as doing more good than harm.

That question is mainly directed to those who think that legalizing software patents is a great idea. Which doesn't really include me.

But I have already pointed to a patent on obnoxious pop-up ads as one such example last year here. As I wrote then:

"So it's actually a good thing. And people should file for 1001 complicated patents on other spam techniques as well. I assume it's already done. That way the spammers will get sued by the Internet patent holders, leaving everyone else hoping that both sides will lose."

Now this article in the California Lawyer Magazine might point to some other desirable and useful software patents. (Link credit: Bag and Baggage).

That article describes business-method patents on legal work, like "rendering legal services over the internet" or "communicating between a patent attorney and prospective clients".

Dumping all limits to the patent system means that everyone has to deal with it, including lawyers. So it makes only sense that lawyers get a taste of their own medicine. I suppose most of them won't bother to check the patent databases each morning to see what they are still allowed to do for their clients.

Lord Granville remarked in 1851 in the House of Lords: "The only persons who derive any advantage from the Law of Patents are the lawyers. Except, perhaps, warrants for horses, there is no subject which gives such an opportunity for roguery as the Law of Patents."

That changes if lawyers have to deal with the same kind of misery as programmers.

If 1001 patents on the way of running a law firm are granted and enforced, watch for lawyer support for patent inflation evaporating rapidly.

So, yes, "communicating between a patent attorney and prospective clients" might be a really nice and desirable patent. Therefore, maybe the future Directive should read something like this:

"Programs for computers shall not be regarded as inventions, except in the areas of commercial communications and law firm and patent attorney services."

If in their view software patents are so desirable, the patent attorney community should eagerly volunteer to be the first in line for the fantastic technological advances they promise everybody else. Then, after the great leap ahead in patent attorney productivity gained by giving them patent protection for themselves becomes clear, we can consider gradually expanding the system to other areas.


Posted by Karl-Friedrich Lenz at 02:58 PM | TrackBack

October 04, 2004

Europeans Take Note

of this Groklaw post on the Kodak victory over Sun. It explains once again why we should be in no particular rush to fundamentally undermine the stability of both the European software industry and the patent system by introducing software patents.

One point in that article I have not heard before. The article assumes that patents are designed for "mature industries" and, since software doesn't "wear out", there will be no point where the software industry reaches maturity.

I am not convinced by this line of reasoning.

The usual explanations for putting up with all the costs and problems of having patents is that they are needed as incentives to innovate and to disclose inventions. I don't believe that this is limited to industries that are "mature".

Posted by Karl-Friedrich Lenz at 11:28 PM | TrackBack

September 06, 2004

Ballmer Mistake

Microsoft's Steve Ballmer recently remarked that "in the Linux world, nobody stands behind patent claims."

He probably wanted to say that "nobody defends against patent claims in the Linux world", since he cited the Eolas case where Microsoft is on the receiving side of a infringement lawsuit based on a illegally granted harmful and obnoxious patent.

That would actually make sense, but it would probably still not be true.

As Dan Ravicher points out, there is a good chance that "deep pockets" parties would step up to defend an important Open Source project against attacks by software patent holders.

And as I wrote in "Grenzen des Patentwesens", the unfortunate patent holder who wants to enforce his software patent will have only his lawyers as a friend (as long as he is able to keep paying them $500 an hour) and the whole rest of the world as an enemy.

Anyone who thinks it will be easy to defeat Linux in a patent lawsuit because "no one defends" might be in for a nasty surprise.

Posted by Karl-Friedrich Lenz at 11:32 AM | TrackBack

August 17, 2004

GPL criticism

by Stephen H. Wildstrom in Businessweek Online here. Found via Groklaw, which is not very favorable of aborting the GPL right now.

Wildstrom gives the recent development in Munich as one example. Migration from Microsoft to Open Source seems to be delayed by the need to assess patent risks. Anyone interested in that particular development should read this FFII Wiki page as a starter.

He might be right. The GPL might be incompatible with software patents, since it is difficult to license any patents under the GPL. Who would receive the license? Who would pay for it? How would you calculate license fees?

If that is so, one of the two would need to go.

And that is the real significance of the Munich development. It gives another strong reason to kick software patents out of Europe.

Posted by Karl-Friedrich Lenz at 08:38 PM | TrackBack

August 03, 2004

FFII News

This FFII Wiki page links to all sort of news on software patents. For example this Sydney Morning Herald article that looks at the question from the point of view of a software engineer in a large software house.

One lawyer is quoted in the story to explain the large number of ridiculous patents issued: "Look, if the examiners were any good they'd be in industry, so you don't have too much to worry about."

The article's conclusion:

"Software patents, and their accompanying monopolies, have done immeasurable damage to the world of computer programming, and are one of the reasons the centre of innovation has moved either to open source software, or to corporate working groups where everyone agrees to automatically cross-license all their patents to each other - thus forming a patent oligopoly rather than a patent monopoly."


Posted by Karl-Friedrich Lenz at 09:40 AM | TrackBack

July 16, 2004

Japanese FTC Microsoft Decision

The Japanese FTC has warned Microsoft to drop a clause from their contracts that limits the ability of their partners to sue them for patent infringement. The Japan Times reports here, and there is a Slashdot discussion on the article. I just wrote the following comment there:

I have read the original Japanese decision, dated July 13th. It is here:.



The legal reasoning at the very end of the document is just slighty longer as your average haiku . All it says is (translation mine):

"This is imposing unfair restricting conditions on the enterprise activity of PC makers and sellers in doing business with them and is therefore a case of number 13 of unfair business practices (FTC notice number 15/1982) and as such violating Article 19 of the Antimonopoly Act."

Readers of this reasoning are left without a clue when this kind of clause might be legal. There are many possible situations where this kind of defense against software patent claims might be quite reasonable.

One obvious one is a wide cross-license agreement between two companies. Did the FTC just outlaw those and make it impossible to cut through the software patent thicket?

It will be interesting to see if the FTC issues a less cryptic decision after the hearing with Microsoft.

Posted by Karl-Friedrich Lenz at 02:35 PM | TrackBack

July 04, 2004

Netherlands Patent Resolution

now in English at the FFII wiki here.

The Netherlands Parliamant discussed the software patent directive proposal and adopted a motion that requests the Government to withdraw support to the proposal and abstain instead.

This might possibly mean that the majority in Council for the proposal that was slim to begin with might disappear.

It probably also means that the Dutch Presidency can't push as activily as the Irish one for selling out the European software industry to American patent holders.

This is also significant for the general debate about democracy in the EU. Criticism that legislation should be discussed in Parliaments and not done by governments, that the strong power of the Council in the European legislation process shows a lack of democracy in the EU, this argument can be countered by this example: It clearly shows that Member States' Parliaments are free to discuss and decide on European legislation projects.

Expect a debate on this particular project also in other Member States' Parliaments, especially in Germany.

Posted by Karl-Friedrich Lenz at 06:24 PM | TrackBack

June 19, 2004

A Short Note of Thanks

to Axel H. Horns for this blog entry titled "German F.D.P. fishing for Compliments amongst Anti-Patent Activists".

Again, Horns is insulting politicians, calling their ideas "rubbish".

This is great for our side. Please keep up the good work.

By the way, his point was actually correct. As I have discussed here earlier in answer to a comment by Christian Beauprez, the purpose of the TRIPS agreement is not reducing the level of protection.

I would however object to his "anti-patent activist" label. It is not correct, it is unfair, and it does nothing to further the debate.

Be careful what you ask for. Do you really want all opponents of software patents to call for wholesale abolition of the patent system?

Posted by Karl-Friedrich Lenz at 01:48 PM | TrackBack

June 16, 2004

Bessen/Hunt Paper

"An Empirical Look at Software Patents" here.

From the abstract:

We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity. This result occurs primarily in industries known for strategic patenting and is difficult to reconcile with the traditional incentive theory of patents."

Table 2 shows that 70 percent of American software patents are assigned to U.S. assignees, followed by Japan with 18, Germany with 3 and Great Britain with 2 percent.

This confirms with hard data the natural assumption that most software patents are held by American companies, and that legalizing them in Europe will not help European interests, but rather will lead to large net payments from the European software industry to American patent holders.

Found at Furdlog.

Posted by Karl-Friedrich Lenz at 04:55 PM | TrackBack

June 13, 2004

EFF Patent Busting Project

described on this EFF page.

This is a good overview of the reasons why people should question software patents in general. And it sets out a clear strategy to deal with the problem in America, where current patent law seems to allow for patenting 1-click and using a credit card over the Internet.

That strategy has two steps. The first is to identify the worst offenders. Then the EFF plans to challenge the validity of those worst offender patents by starting re-examination processes.

The first step needs a measure to compare the damage done by two software patents to see which of them is worse.

Two aspects come to mind. One is how many people's freedom would be reduced to what extent if the patent in question is enforced. The second is whether the patent holder actually tries to do so.

To win the crown of most damaging software patent, the ideal candidate would cover a widely used standard and be owned by an aggressive patent litigation company with no own products that can't be held in check by defensive patents.

The EFF patent busting contest page says:


We're especially interested in patents that target tools of free expression, such as streaming media, blogging tools, and voice over IP (VoIP) technology. Most importantly, the patent-holder must be aggressively enforcing its patent and suing (or threatening to sue) alleged infringers. We're particularly interested in cases where the patent-holder is trying to force small businesses, individuals, nonprofits, and consumers to pay licensing fees. Deadline to enter is June 23.

Found at Slashdot.

Posted by Karl-Friedrich Lenz at 10:44 AM | TrackBack

June 06, 2004

Intellectual Property Rulers

Cory Doctorow is writing at BoingBoing about the European "Campaign for Creativity" astroturf website, while very sensibly not linking to them.

There is some background on them at this FFII page. Apparently, the person behind this campaign, Simon Gentry, has been successful in lobbying for the 1998 biotechnology patent Directive.

I have found this interesting explanation on their page on the software patent Directive:


All the medicines we use to cure illness, all the music we enjoy listening to and all the books we love reading are the result of the intellectual property rights system. IT may be a more recent field of invention, but it too has developed only because of the current IPR rulers.

I leave it as an exercise for the reader to figure out who the "current IPR rulers" are.

This would probably make sense, even though I would not agree with this rather extremist and one-sided view, if it said "rules" instead of "rulers".

But what they actually wrote is much more fun to read.

Posted by Karl-Friedrich Lenz at 09:36 PM | TrackBack

June 04, 2004

Patent Trolls

can be likened to modern day highway robbers, according to this BBC online article by Maggie Shiels (link credit: Slashdot).

Patent trolls are described as lawyers or investors who buy cheaply paper patents mistakenly granted to failed companies and then use those to threaten shutting down some big company. More often than not, that big company will pay up because that costs less than defending the lawsuit successfully.

I wonder when people will start fighting back with extortion and other penal law charges against the worst abusers of the system, or find some other method to stop the "patent trolls".

If that doesn't happen, the patent system might soon be declared broken, just as e-mail has been declared broken by spamming abuses.

Patent lawyers should be the first in the fight to preserve the integrity of the system their job depends on. Instead, many of them are betting on more and more patent inflation and don't worry about all the abuses.

Update: Ipkat, discussing the article mentioned above, agrees that it is necessary to fight patent abuses.

Posted by Karl-Friedrich Lenz at 08:34 PM | TrackBack

June 03, 2004

Double-Click Patent

This article by Sam Varghese in the Sydney Morning Herald reports on a patent for double-clicking granted to Microsoft in April. Slashdot discussion here.

So, OK, the American patent office is granting stupid patents without limits again. That's not news. Nobody paying attention should expect anything else.

On the other hand, one of the reasons I started following the software patent issue in the first place was the 1-click patent awarded to amazon.com, leading to a boycott by the Free Software Foundation. That case is so famous that it is even included in the Wikipedia timeline of computing.

Therefore, I think it is at least worth mentioning the logical follow-up here. And this new patent is probably another powerful example to point to when asking for some meaningful limits to patentability.

Posted by Karl-Friedrich Lenz at 02:59 PM | TrackBack

May 26, 2004

Perfect Way to Turn Music Fans Against Patents

Now articles critical of a US patent appear in the Rolling Stone, of all places. Link found at Slashdot.

Apparently, in America it is worthy of a patent if someone thinks of recording concerts and selling the recordings to exactly the people attending by producing them in time while the fans are still at the venue.

This is of course just another obvious application of existing recording technology.

But whether that particular patent should have been issued or not is not my point here. The point is that the patent system just made every music fan prevented from buying a recording of their favorite band rather sceptical of said system.

Way to go. If you want to abolish patents by nuking support for it in the general population, that is, which is not my agenda (I'm agnostic on the point).

Once you lost the Rolling Stone, things will go downward rapidly.

Posted by Karl-Friedrich Lenz at 10:40 PM | TrackBack

May 24, 2004

Bogus Good News

What I reported as the good news that the German government would oppose the Irish proposal on a software patent directive here turned out to be wrong.

Actually, according to the FFII report here, the German government has done exactly the opposite. They have worked to weaken the opposition to this proposal by paying some meaningless lip service to our side, and then voting for it, leaving the proposal with a slim majority in Council, if one counts Denmark's votes (which were not really declared in any way).

That doesn't mean the proposal is ready for publishing in the Official Journal. It does seem to be rather far away from what Parliament thought of the issue. Barring a major shift in Parliament's opinion it would seem to be difficult to have it pass there as well.

On the other hand, while the opposition to the Irish proposal barely failed to block it, there seems to have been no chance for a majority in Council just approving the Parliament's text.

That probably leaves Council and Parliament blocking each other. Of course, the new Parliament might change its mind and pass this proposal.

It would seem to be fair to expect some major lobbying efforts by both sides in the next round in Parliament.

Posted by Karl-Friedrich Lenz at 01:40 PM | TrackBack

May 17, 2004

Compat

In case you wonder what that means, it's an abbreviation for "Community Patent", which makes perfect sense to everyone and is in no need whatsoever of cutting four syllables. The EU Commission however feels differently and uses this kind of confusing language in their new FAQ on their "dead" legislation project.

The Commission wants now that translations are required, except when a Member State renounces.

Personally, I don't approve of that idea. All languages of all Member States are official languages of the EU. While it might be acceptable to reduce translation requirements for a brief transitional period if there is a shortage of qualified translators, as in the case of Malta addressed in Council Regulation 930/2004 of May 1st, I think it is reckless and discriminatory to expect citizens of minority language Member States to pay for translation work themselves, just to be able to read patents they are supposed to obey.

If the patent holder doesn't want to pay for translation costs, he shouldn't get a patent in the country in question. Member States have no business waiving this fundamental requirement and exposing their citizens to translation costs that come on top of the considerable financial burdens associated with patent searches in the first place.

There is no other case where a citizen is required to obey some text as law that is not available in his own language. In Germany, the last time we had legal texts in foreign languages was in the 19th century (Latin, and French for some parts of the country), which was a strong motive for enacting the present German Civil Law, the BGB. From the 20th century on, German citizens finally were able to read their law in their own language.

Waiving that right for patents leads right back into the 19th century. I don't approve of that idea, even if it affects only smaller Member States like Malta. Creating a group of second-class citizens and discriminating against them should be resisted strongly.

Posted by Karl-Friedrich Lenz at 11:25 AM | TrackBack

May 13, 2004

Good News for a Change

FFII reports that the German government declared opposition to the proposal now discussed in the EU Council which would reverse most of the restrictions on software patents Parliament voted for in September last year.

Update: Groklaw coverage here.

Posted by Karl-Friedrich Lenz at 09:24 PM | TrackBack

May 11, 2004

Bruce Perens Interview

here. This is what he has to say about software patents:

"I think many people in the proprietary world will take a cue from SCO and that we are approaching a very bad time regarding software patents. We have an overload of improperly issued, invalid, non-invention software patents that will be prosecuted aggressively against people who can't really afford to defend themselves.

The problem is worst for the open source developer, but it's also a problem for small and medium-sized businesses. If the open source developer gets sued, he probably can't afford to be in court very long. He'll probably have to settle. In the one example I have of this so far, the developers signed their copyrights over to the plaintiff and signed a covenant that said they wouldn't develop similar software."

This is a realistic view. When discussing patents, the law and strategy of civil procedure matters a lot. It doesn't help anyone to be able to win defending a patent lawsuit if that is so expensive that settling is cheaper.

Posted by Karl-Friedrich Lenz at 10:35 AM | TrackBack

May 04, 2004

Increasing Distrust

Bob Sullivan has an interesting article on business and Internet patents up at MSNBC.

Apparently, in 1999 some enterprising inventor has sued the American Red Cross for accepting donations over their web page.

The article then quotes a patent lawyer who "finds this whole kind of thing disturbing" because it "increases people's distrust and frustration with the legal system".

He's right. I think it's fair to say that suing the Red Cross for accepting donations won't increase popular support for the patent system.

It also won't help if you hear that somebody claims to own the idea of Internet commerce, even if that claim won't hold in court. The ability to pay a lot of money and win defending a patent law suit is very different from not being bothered with ridiculous patent claims in the first place.

Both articles above found at Slashdot.

Posted by Karl-Friedrich Lenz at 01:43 PM | Comments (0) | TrackBack

April 26, 2004

"Software and Patents Need to Get a Divorce"

Article on Groklaw about the new wave of JPG patent legislation. Some background info on the JPG patents is at the FFII pages on well-documented cases of software patent effects.

Posted by Karl-Friedrich Lenz at 11:42 AM | Comments (1) | TrackBack

April 19, 2004

Triple Protection

I got some anonymous comments to one of my software patent posts of Wednesday last week.

The comments seem to assume that the public actually gets some meaningful disclosure from software patents. I don't share that idea.

The system could work that way. In a recent article in the German language Gewerblicher Rechtsschutz und Urheberrecht (2004, Page 198) the authors say that the patent system should require disclosure of source code when someone files for a software patent.

That is not, however, how things are done right now.

The comment also says that I "misunderstand the inherent nature of copyright and patents as applied to software."

That is not correct. I do know the difference between patents and copyright, thank you. My point was that since there is already copyright protection, there is no need for patent protection on top of that. There is no reason why software should qualify for double protection.

But, then on the other side, I was actually wrong. I overlooked the fact that there is also trade secret protection in undisclosed source code. Software - and only software - gets the triple protection of patent law, copyright law, and trade secret law. Microsoft can file their ten patents an average week and still not disclose their source code.

Posted by Karl-Friedrich Lenz at 04:12 PM | Comments (1) | TrackBack

April 18, 2004

FFII and US Non-profits

The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich (Germany). (Disclosure: I am a member of the Advisory Board).

There is also a United Kingdom volunteer group of the FFII.

Now a similar foundation has started some activity in the US. The Public Patent Foundation wants to represent the public's interest against wrongly issued patents and unsound patent policy. Their latest news is a challenge to a patent on FAT technology held by Microsoft.

Until now the League for Programming Freedom seems to have been the organisation closest to the goals of the FFII in the US. Maybe the new Public Patent Foundation can work in the same direction, and even consider cooperating with the FFII in one way or another.

Posted by Karl-Friedrich Lenz at 11:38 PM | Comments (0) | TrackBack

April 14, 2004

Purpose of the Patent System

Axel H. Horns writes in his recent FAQ on "computer-implemented inventions":

Q5: What is the most important purpose of the patent system today?

A5: Patents are instruments to secure fair market values for non-obvious technical problem solutions ("inventions"). This is also valid regarding such inventions for which the realisation requires the usage of a programmed computer or computer network:

He then goes on to dismiss our side of the debate as a bunch of communists, which is one reason why I wrote a few lines about the undisputable facts regarding the personal financial interest he and other patent attorneys might have in this debate.

(Update: Horns kindly clarifies that he did not mean communism when he wrote "lobbying against modern global capitalism". I agree with his point that there is no benefit to be found for either side in the debate in using labels like "communism", and my original point is that that is also true for the label "anti-capitalism", or "anti-patent" for that matter.)

If I dismissed everything Horns writes as motivated by greed, that would be unfair in exactly the same way as his dismissing our side as "lobbying against modern global capitalism". I call everybody's attention to this unfairness but refuse to reply in kind. Again, I do not assume that everything a patent attorney writes is worthless just because he might have a financial interest in the debate.

And his question is actually quite important and interesting. I am going to try to have a swing at it myself and then I will address his answer.

There are several purposes associated with the costs in patent attorneys' fees, patent offices and restrictions of everybody's liberty that come with having a patent system.

One of them is the idea that the patent system helps disclosing technology. Without patent protection, people would keep their technology secret. Society pays the costs mentioned above to get the disclosure of technology in return.

For software patents, that does not seem to be an interesting deal for society. As far as I know, people who actually do development work do not research prior art at the patent office. The recent paper in support of software patents by Ronald J. Mann also says that no one the author spoke to researched patent prior art.

If anything, software patents are generally regarded as the single most effective threat against open source software development. If that is true and open source projects will be taken down or crippled all around the place, society will actually get less open information on technology than without a patent system. The open source development method seems to be far more effective for the goal of disclosing technology than the patent system.

Any gain for society in disclosing of software technology is dubious at best, and probably far outweighed by the potential damage to a process of disclosure that everyone knows is really working.

Another purpose of the patent system is to reward development. Without such reward, there might be a lack of incentives to invest the necessary ressources to develop great new technology.

However, with software there already is copyright protection. That is quite enough to assure the ability to make a profit. If our side is wrong and software can be protected by both copyright and patents, then that would be the only such case. Books, movies, music are protected only by copyright. You can't get a patent on the idea "young sorcerer's adventures at magician's high school". So why do we need a patent on the idea of "adding a third dimension to menus by grouping them as tabbed palettes one behind the other"?

Therefore the above purposes of the patent system do not seem to give much of a good reason for society to bear the costs in freedom and money associated with them.

Now for a short discussion of Horns' answer. He says that the purpose is to "secure fair market values".

I think it is exactly the other way around. Any patent disables the market mechanism. If some company has a patent on some drug with a large market, generic makers can't compete as long as the patent is valid. That, in turn enables the patent holder to charge more than the price that would result if competition was not restricted by the patent. The difference between the price such charged and the price resulting from a working market mechanism is the value of the patent.

Then, again, maybe I didn't understand the answer correctly. Maybe Horns wants to say that the market price without patents would not be "fair".

That leads to another criticism. What exactly is a "fair" reward for the patent holder? And, if there is any way to describe the dollar amount of a "fair" reward, how exactly does the patent system guarantee that the patent holder receives that "fair" amount and neither less nor more than would be "fair"?

The answer to these questions doesn't seem to be easy. I am agnostic on the point. While I think it might be possible that the patent system as a whole does work to assure "fair" rewards, I don't think it is easy to prove or disprove this with hard economic data.

Anyway, even accepting that assuring a "fair" reward for the development of technology is the purpose of the system, in the case of software that is already assured by copyright protection.

Posted by Karl-Friedrich Lenz at 07:56 PM | Comments (3) | TrackBack

10 Software Patents a Week

filed by Microsoft on avarage, says this article by Mary Jo Foley at microsoft-watch.com (link credit: Dave Winer).

Just another reason why people need to pay attention to the fight going on right now in Europe.

Posted by Karl-Friedrich Lenz at 03:20 PM | Comments (0) | TrackBack

Myth of the Software Patent Thicket?

Ronald J. Mann has published a paper with that title on SSRN (link credit: Axel H. Horns).

I happen to believe that there are so many software patents around that nobody actually trying to observe them all can get any programming work done, which is about what Shapiro teaches us in his paper about "Navigating the Patent Thicket".

So I was interested to have a look at why I might be wrong.

Mann's argument:

He has talked to a lot of people actually involved in the use of software patents in America. One of his results is that none of the start-up firms he has spoken to do any prior-art searches before beginning development of their products. (Page 53).

I have no problem whatsoever agreeing with Mann here.

Of course nobody does any prior-art searches. There are two reasons for that. Patent information is utterly useless for people who actually want to develop software, and is deliberately kept useless by those drafting the patents, for example by filing software listing as a paper copy. And, more importantly, actually researching prior art leads to bad faith if one finds anything, and stronger sanctions in the infringement lawsuit later on.

However, if the problem of software patents could easily be solved just by ignoring them, nobody would worry. Just shutting your eyes and pretending not to see the patent thicket does not remove its existence.

Mann then proceeds to explain that infringing software patents is no big deal because IBM is very unlikely to actually sue infringers (Page 53).

Again, this is only a denial of reality.

Of course, if every software patent holder started enforcing every patent, the whole software industry would collapse just in the same way as it would if everybody actually started researching prior-art and asking for permission all around the place to actually get some development work done.

But, while it is nice to see that IBM doesn't enforce all its patents all if the time, that changes nothing about the fact that they could do so whenever they happen to feel like it.

The fact that no nation has actually used a thermonuclear weapon of mass destruction for the last fifty years does not mean that those weapons are a myth. In exactly the same way, the fact that not all software patents are enforced does not mean that they are a myth.

After spending several pages on explaining why IBM won't enforce software patents, Mann then tells us that IBM or Microsoft are going to enforce their software patents after all, by demanding royalties from just about any software project, since anyone can expect to be violating some of the big player's patents (Pages 57 to 58).

That obviously is in contradiction to what he just told us a few pages back. Either IBM won't enforce any software patents or they will ask for royalties. It would be nice if the author could make up his mind.

Mann tells us then that even if IBM can ask any other software developer to pay royalties, that still doesn't qualify as a "patent thicket", since developers are still able to secure the necessary licenses (Page 58). To quote:


On the contrary, a patent thicket would exist only if industry licensing practices were such that firms in the industry commonly were unable to agree on terms for licenses and thus retreated from the field of innovation."

Obviously, if you can get licenses, you don't need to worry about violating patents. And the Shapiro paper quoted above describes cross-licenses and patent pools as strategies for dealing with patent thickets.

Again, the fact that you can navigate the patent thicket by getting licenses doesn't negate its existence.

As a result of looking at Mann's paper, I don't find anything not compatible with my belief that the large number of software patents granted already would shut down the software industry completely if all patents were enforced at all time (with the exception, of course, of large companies able to pay $440 million in settlement fees for patent violations).

Posted by Karl-Friedrich Lenz at 02:49 PM | Comments (0) | TrackBack

Cashing In on Software Patents

Some of the people advocating software patents, business model patents and Internet patents might be suspected to do so because of their own personal financial interest.

For example, European patent attorneys received an additional turnover of about 500 million Euro from the illegal granting of 30.000 software patents. The Commission estimates the agent's fees for one European patent as about 17.000 Euro. Multiplying by 30.000 gives 510 million.

So our side might be inclined to dismiss everything coming from a patent attorney as purely motivated by personal greed without even looking at what they are saying. I am not referring to any special person here, though this is just another great opportunity to point out what an excellent blog Axel H. Horns is running.

That, however, would be wrong in two different ways.

One: It would be too simple an approach. While it might be possible, even plausible, that a patent attorney could think about the effect of his positions on the amount of his business, it won't do to disqualify everything they say in wholesale without even reading. In a democracy, everybody has a voice. While it won't do to have patent policy set only by those with a personal financial interest in its expansion, it also won't do to exclude those most experienced and most directly affected by patent policy from its discussion.

Two: Actually, some patent attorneys (Axel H. Horns being one of them) understand that the debate on software patents has the potential to develop into "the big threat to come" . Expanding the limits of patentability might bring some short term additional business to patent attorneys. But that comes at a cost of added cricism and more potential for "earthquakes".

Therefore, it would be premature to assume that unlimited patent inflation is in the business interest of patent attorneys. They want more business. But they also need stability. "Patent explosion" won't help that goal.

Which in turn means that it would be premature for our side to assume that all patent attorneys only compete on finding the best way to confuse the issues in order to feed their own personal bottom line.

That, of course, doesn't exclude that some patent attorneys might actually advocate blowing up all limits of patentability in order to make an extra buck.

Which would be kind of ironic, since the ultimate result of that would be to blow up all legitimacy of and support for the patent system as such in the process.

Posted by Karl-Friedrich Lenz at 01:58 PM | Comments (0) | TrackBack

Dvorak Article

Somehow I missed linking to the September 2003 article "Patent Riots of 2003" by John C. Dvorak in PC Magazine. Fortunately, the FFII main press release page has it in its list of annotated links.

The author's conclusion:

I have been relentlessly looking at these and other issues and must conclude that the way things are currently rigged, the big companies can easily lord it over the small fry unless the small fry are also loaded. This is neither a level playing field nor a productive environment.

What do I tell people who see this as a problem? I just tell them to patent every idea they can and never produce any sort of product. It looks impossible to develop anything in this environment except patents and lawsuits. Yeah, like this is going to fix the economy. My conclusion: support the FFII.

Posted by Karl-Friedrich Lenz at 12:07 PM | Comments (0) | TrackBack

Net Demonstration

For the occasion of the main demonstration against software patents in Brussels today, I will try to contribute an idea or two to the discussion.

I hope this will be of more use than just closing down my website.

Posted by Karl-Friedrich Lenz at 11:45 AM | Comments (0) | TrackBack

April 13, 2004

Microsoft Intertrust Settlement

Microsoft has settled a patent infringement lawsuit with Intertrust with a $440 million license deal. Actually Philips and Sony seem to be on the receiving side of those $440 million, since they bought out Intertrust last year.

Slashdot thread here.

I am sceptical of software patents and support the FFII in its opposition to legalizing them in Europe.

But whatever your position in that debate is, there sure is a lot of money involved. The stakes are high, as this case shows again clearly. One more reason to pay attention to this fight, which is nearing a decisive phase now in the European Union.

Axel H. Horns has recently posted a FAQ on computer-implemented inventions (software patents) supporting wider patentability of "computer-implemented inventions" (link credit: Rainer Langenhan). He is critical of the more restrictive view the European Union Parliament adopted last year. which he called an "earthquake".

In the context of this $440 million settlement, I want to highlight just one statement in his FAQ which I agree completely with:

(One of the answers to question 4): However, in particular some smaller companies or freelancer programmers may suffer difficulties in economic terms when attempting to allocate sufficient ressources to take care of patent infringement problems.

Indeed. If "sufficient ressources" means $440 million, very few companies will be able to "take care of patent infringement problems".

So, yes, it is only natural that those without the deep pockets and large lawyer armies needed to deal with software patents should be inclined to question the advisability of exploding all limits to patentability, removing their ability to compete in the process.

Posted by Karl-Friedrich Lenz at 11:10 AM | Comments (0) | TrackBack

April 10, 2004

FFII

has a new page up on the fight about the proposed software patent Directive. They are calling for a net strike on April 14th.

Posted by Karl-Friedrich Lenz at 09:46 PM | Comments (0) | TrackBack

April 06, 2004

Goofy Software Patents Update

This article in Wired gives a few recent examples of weird software patents awarded in America: Technology to "erase unwanted data from a computer", filtering spam and viruses on a remote server, assigning the name to a website (a similar patent has lead to criminal fraud investigations against the patent holder in Germany, as blogged here and here (in German) before), and the idea of using cookies.

Of course, no one should be surprised by this endless stream of absurdity. If there are no meaningful limits to patentability left, this is only what should be expected from a system clearly broken.

Link credit: Dave Winer.

Posted by Karl-Friedrich Lenz at 04:12 PM | Comments (0) | TrackBack

March 23, 2004

Electronic Filing II

Since October last year, the German Patent Office accepts applications filed over the Internet, see this previous post.

From March 22 on, European patent applications can be filed with the German Patent Office electronically as well, see this EPO press release.

Link credit: Axel H. Horns.

Posted by Karl-Friedrich Lenz at 12:13 PM | Comments (0) | TrackBack

March 14, 2004

Christian Beauprez on Software Patents and TRIPS

Christian Beauprez kindly wrote a comment to my September 26 entry "Horns Blog on Patent Vote".

He points out that the TRIPS treaty requires protecting computer programs as "literary works". Since that is not compatible with protecting them as patents, all countries awarding software patents right now are in violation of TRIPS, in his opinion.

He might be right. On the other hand, I would be surprised if the EU Commission asks for WTO sanctions against America and Japan in this particular case. As a reason for refraining from doing so, the Commission might point to Article 1 Paragraph 1 TRIPS:

Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.

So, even if Member States are required to provide copyright protection for computer software as literary works, they might still be entitled by Article 1 to provide patent protection on top of that. The contrary view would imply an obligation to reduce the level of protection, which is quite the opposite of the purpose of TRIPS.

Anyway, I think this is an interesting idea. And I haven't seen it anywhere until now.

Posted by Karl-Friedrich Lenz at 06:04 PM | Comments (0) | TrackBack

March 13, 2004

EU Community Patent

is dead, says Axel H. Horns, and describes some background on the latest unsuccessful Council session, as well as citing a statement by Commissioner Frits Bolkestein. For some strange reason many Member States don't seem to like the idea that all patents in the system should be just in English.

I wrote here on March 7 last year:

I'll believe it when I see it in the Official Journal. This is not the first announcement that the EU agrees on joint patent system. Basically the language issue is extremely difficult to solve.

It seems I was right then.

Posted by Karl-Friedrich Lenz at 06:53 PM | Comments (0) | TrackBack

Patent Database Censorship

Dan Gillmor publishes an e-mail from Bruce Schneier complaining about censorship of the American Patent Office database.

Apparently, users of that database have lost the ability to further their valuable research on how to use ricin as a weapon of mass destruction. Requesting the patent in question returns only an error message.

This is not censorship. The government doesn't tell anybody else to shut up in this case. They are only holding information back that they have. And they do so in many other cases as well. Is it "censorship" if there are no instruction manuals for making weapons of mass destruction on the Pentagon website?

On the other hand, Axel H. Horns might be right in commenting that the basic social contract behind the patent system is granting a temporary monopoly in exchange for public information. That would mean that the very fundaments of the patent system require that every lunatic on the planet is served by the Patent Office with information about how to use ricin for the next large scale attack.

That in turn would seem to lead to an excellent argument for wholesale abolition of the patent system, if anybody should get inclined to call for such abolition, for example as a reaction to the mess caused by software patents.

"Look! The patent office is helping terrorists to develop their WMD ability! And we can't even stop that without compromising the basic social contract the patent system is built on."

This is a strong argument. I am personally very much interested in preserving a free Internet. However, I draw a line at pages describing technology to build weapons of mass destruction. Leaving this information freely available can kill people. The level of damage possibly arising from that is extremely high.

I'll be happy to come back to this case if I ever feel that there is no other hope left than calling for abolition.

And, by the way, if the patent in question can still be found in foreign databases, that only proves that it needs to be removed from those immediately as well.

There is some background on the patent at this article (via Ernest Miller).

Update: Axel H. Horns kindly reacts to my comment here. I have nothing much more to add to my above post. However, since Horns stressed the fact that I am on the FFII advisory board, I would just like to clarify that the views expressed above are in no way to be imputed to the FFII, being only my own. If anything, they run against the basic idea of a "Free Information Infrastructure".

Posted by Karl-Friedrich Lenz at 06:37 PM | Comments (3) | TrackBack

March 06, 2004

Eolas Patent Invalidated

Furdlog points to this news.com article about a preliminary decision of the patent office to invalidate the illegally granted harmful and obnoxious Eolas patent.

As I have pointed out before, the W3C does have some influence to defend the Internet against the most damaging patents.

And invalidating this kind of claim is the only way the patent system as such can survive. If the patent office lets patents like the Eolas patent stand and cripples the Internet in the process, we will see a strong patent abolition movement, since everybody understands that there is no justification for ownership in the concept of a browser plug-in, but most people don't know and don't care about the positive effects of patents in other fields.

Patent attorneys ignore the danger of overextending the system at their own peril. They should be the loudest voices calling for meaningful restrictions, instead of betting everything on unlimited patent inflation.

Posted by Karl-Friedrich Lenz at 04:21 PM | TrackBack

March 04, 2004

Disclaimer Claim

here. I don't know if the American patent office has already granted this, but I wouldn't be surprised.

The author of that disclaimer claim, patent attorney Stephen M. Nipper, has a blog with many interesting posts on patents here.

Posted by Karl-Friedrich Lenz at 08:34 PM | Comments (0) | TrackBack

February 28, 2004

Moglen Transcript

A transcript of Eben Moglen's Harvard speech has been published at Groklaw. A few quotes:

"Patent law in the 21st century is a collection of evil nuisances."

"Patents are about politics. I thought that the pharmaceuticals companies did my side a favor by buying us 12 trillion dollars in free publicity in the last half decade by teaching every literate twelve year old on earth that "intellectual property" means people dying of preventable diseases because the drugs are too expensive because patents cover them."

"Our society is a much less aware one on that subject. For those of us who live here, the task of getting to the standard set for us by our colleagues in Europe this past summer is the first and most important challenge. We must make our Congressmen understand that patent law is not an administrative law subject to be decided in the PTO, but a political subject to be decided by our legislators. We may have to restore actual democracy to the House of Representatives in the United States in order to make that possible, and there are many other aspects to the challenge involved."

Good luck with the task of restoring actual democracy. That seems to be rather difficult.

Slashdot discussion here.

Update: Rainer Langenhan points to this Greplaw story on Moglen's presentation.

Posted by Karl-Friedrich Lenz at 11:33 AM | TrackBack

February 22, 2004

Open Source Insurance

David Berlind has published an article in ZDNet about "open source insurance".

This idea wants to offer insurance against any form of intellectual property claim against open source software users for a premium of 3 percent of the annual coverage. Daniel Egger is the founder of "Open Source Risk Management" and is looking for the backing of large insurance underwriters.

As I have blogged before here, the EU Commission is also looking into the possibility of this kind of insurance. There is a 2003 study on "The possible introduction of an insurance against costs for litigation in patent cases" by CJA Consultants Ltd, European Policy Advisers, Britain and Brussels at the Commission website on the Community Patent.

That study was limited to insurances covering patent litigation, while the project above would cover all kind of intellectual property claims. The study says that patent litigation insurance has not seen much success until now. Demand is low, and premium prices are high.

I have no idea if this kind of insurance will be a viable solution to the intellectual property problems facing open source software. Eggert assumes that patent claims will be next after the SCO case. "The money to be made is phenomenal".

Assuming that he is right and that his insurance will provide the solution to the problem. That would convert the patent litigation costs for open source software to the model of car accidents litigation. Usually an insurance company pays for those. The cost of that risk for drivers is the cost of insurance.

And then one could easily sum up the total cost of software patents for open source projects by adding up all the insurance premiums.

That is not possible right now. However, Egger is probably right. It would be a big surprise if we won't see many claims against open source projects based on software patents in the future.

And if insurance won't work as a countermeasure, other strategies need to be discussed. Just as the basic idea of insurance and just as the basic idea of open source software to begin with, these strategies should be based on sharing the burden of dealing with the threat between many interested parties.

Slashdot discussion here.

Posted by Karl-Friedrich Lenz at 09:27 PM | TrackBack

February 13, 2004

Rambus

has had one of their patents revoked by the European Patent Office, triggering a 17 percent slide in their stock.

Link found at MPI.

Posted by Karl-Friedrich Lenz at 11:01 AM | Comments (0) | TrackBack

February 04, 2004

Proposal for EU Patents Court

The EU Commission has proposed establishing jurisdiction for the ECJ over Community patents and a new patent court.

Both proposals however make no sense without a working Community patent. And as I have commented about a year ago, I'll believe it when I see the Community patent legislation in the Official Journal, in contrast to seeing announcement number 183792 on the political will to finalize said legislation.

Link found at MPI.

Update: IPKat comments here. They are rather sceptical of the proposed EU patent system.

Posted by Karl-Friedrich Lenz at 03:17 PM | Comments (0) | TrackBack

February 02, 2004

FFII News

FFII reports on a working paper circulated in the EU Council of Ministers that proposes to overrule the vote in Parliament last year.

Again I would like to point to the call for action here.

Any proposal the Council might come up with in their secret deliberations behind closed doors won't be voted on before the Parliament elections scheduled this year.

Update: See also this IHT article for some background. (Via MPI links).

Posted by Karl-Friedrich Lenz at 12:07 PM | Comments (0) | TrackBack

January 31, 2004

Blue LED Patent

The story is on the top of the front page of all Japanese newspapers: Yesterday the Tokyo District Court awarded 20 billion yen to a former employee as compensation for the "invention of the century". That is in contrast to the 20.000 yen the company paid him in the first place. See this article in the Japan Times for some coverage in English.

They would have awarded him 60 billion, but he only asked for 20 (which is still much more than a hundred million dollars). It seems that he's not a greedy guy.

Trembling Leaf has some first comments, in discussion with Suehiro (in Japanese).

They are wondering why the pro-patent crowd behind the concept of "nation-building based on intellectual property" is receiving that particular award with rather restricted enthusiasm. Stronger intellectual property protection seems to be not for the creators, but for the companies employing them.

Posted by Karl-Friedrich Lenz at 09:05 PM | Comments (0) | TrackBack

January 27, 2004

FFII Opposition against Amazon Patent

FFII has announced that they have filed an opposition against the gift-ordering patent the EPO has granted to Amazon.

Link found at Slashdot.

Posted by Karl-Friedrich Lenz at 08:59 PM | Comments (0) | TrackBack

Paying Open Source Developers

is probably something they won't object to very strongly.

But a patent on "a method for paying open source volunteers"?

Since patents are basically monopoly rights, this patent makes it illegal to pay for open source development in the covered way.

So I doubt that this will be a very popular patent in the Open Source community.

But I, for one, like it a lot. One more great example to point at when objecting to software patents.

Link found at Slashdot.

Posted by Karl-Friedrich Lenz at 08:27 PM | Comments (0) | TrackBack

Cognex Wins

against Lemelson, they announced here. This is a lawsuit filed not by a patent holder, but by Cognex Corporation to seek a declaration that the defendant's patents are "invalid, unenforcable, and not infringed".

The Cognex Corporation press release calls Lemelson's business model "legalized extortion".

A similar phrase was used by a German NGO more than 10 years ago against the life insurance industry, speaking of "legal fraud".

Both phrases are colorful rhetoric, but obviously containing a contradiction. The "Lemelson campaign" can be either legal or extortion, but not both at the same time.

It might be an interesting question open to debate if raising absurd patent claims and settling them for less than it would cost to defend the lawsuit is "illegal extortion", as opposed to "legalized extortion". I won't try to answer that here. But with the rather wide spread criticism of the present state of the patent system, that question might get some serious attention one of these days.

While the plaintiff got exactly the declaration they wanted, they don't seem to be entitled to collect any damages from the patent holders in this case.

Link found at Slashdot.

Posted by Karl-Friedrich Lenz at 08:09 PM | Comments (0) | TrackBack

January 20, 2004

Don't Move That Desk

The Japanese "Invention Scientific Society" (Hatsumei Gakkai), which is an association aimed at helping individual inventors to apply for patents themselves, has published a new book, titled "Chiteki zaisan no katsuyouhou" (how to make use of intellectual property).

On page 44 they describe the Japanese patent number 2608000 (you can search for abstracts with the number here).

The patent covers a certain way of arranging the desks in a business doing consultation work. That obviously covers most law offices. So this overbroad business method patent might come back to bite lawyers who arrange their desks in a way that is covered.

The abstract gives Februar 13, 2003 as a "date of extinction of right" . So maybe people can go back to arrange their offices however they want now.

But anyway, I agree completely with the authors of the book that this is quite a remarkable patent.

Posted by Karl-Friedrich Lenz at 08:32 PM | Comments (0) | TrackBack

January 19, 2004

Domain Name System Patent

Schockwellenreiter points to this Register article about an Internet patent on one possible way of using the domain name system. The patent holder seems to start lawsuits based on this patent.

I don't know what the American courts will do with that lawsuit. However, in a recent German case not only the claim of owning part of the domain name system was thrown out, but there were criminal investigations based on fraud charges against the owners of that patent. I have discussed this (in German) here, here, and here.

Posted by Karl-Friedrich Lenz at 03:57 PM | Comments (0) | TrackBack

January 17, 2004

The Anger of Nobuhiro Nakayama

This story has received quite some attention on Japanese blogs, with the most extensive coverage at Trembling Leaf, and the first article by Hideo Ogura.

Nobuhiro Nakayama is a professor at Tokyo University and one of the leading Japanese academics in the field of intellectual property law.

As such he is a member of the Strategic Council on Intellectual Property set up by the Intellectual Property Basic Law of 2002.

However, it turns out that they aren't really listening to him.

And in a statement at the last session on December 17th, Nakayama has raised some angry criticism and said that there doesn't seem to be any point in continuing serving as a member. The transcript is available online, but there is no English translation.

The problem is: Decisions are not taken by the whole Council, but by some kind of subcommittee, where Nakayama isn't a member.

That in turn means that the Council isn't listening to him. Nakayama even found out first about the draft of the first "Strategic Program" by an article in the Nikkei newspaper, where it was leaked before he as a member of the Council received a copy. That does seem to be a rather surprising way to organize things. And if they are not listening to an academic of his class, they certainly won't give other interested lawyers, judges or academics any voice in the discussion.

So yes, this clearly raises some questions about the quality of the debate in the "Strategic Council on Intellectual Property".

Posted by Karl-Friedrich Lenz at 11:28 AM | Comments (2) | TrackBack

January 09, 2004

Community Patent Court

Axel H. Horns reports on proposals to establishing an European Community Patent Court which would decide on lawsuits regarding the proposed Community patent regulation.

Posted by Karl-Friedrich Lenz at 06:26 PM | Comments (0) | TrackBack

November 26, 2003

NYT Editorial on Patents and Trade

Nicholas D. Kristof has some strong words on the question of patents on AIDS drugs. He thinks that it should not be American foreign policy to value the profits of drug companies higher than the lives of AIDS patients in Latin America.

I agree.

The patent system is under the strongest pressure at exactly this issue. True, software patents are obnoxious. But they don't kill anybody, as arguably patents on life saving AIDS drugs do.

Link found at Copyfight.

Posted by Karl-Friedrich Lenz at 10:33 AM | TrackBack

November 15, 2003

Horns on Espacenet

Axel H. Horns discusses in his always excellent blog some innovations at the espacenet.com website, a free patent information website from the European Patent Organisation.

Apparently, they have decided to make their service less usable by removing the ability of users to print PDF-documents.

There is no sensible reason to actively deterioate this information service by crippling its technical usability. Horns suspects some sinister undisclosed agreements with commercial vendors of patent documents.

And he says that it would be a crime under the new copyright rules even to discuss how to circumvent this kind of harmful restriction.

I hesitate to agree with that view.

If I were to explain that this restriction could easily be circumvented by poking your right thumb into the left hole of your nose, that would not be a crime under new German copyright legislation implementing the 2001 copyright directive.

And that's not only because my circumvention idea would not really work. The German legislation as well as the directive prohibit selling circumventing technology. They don't prohibit discussing technology.

That difference became an issue in the recent case of John "Alex" Halderman, who described an easy way to circumvent the SunnComm CD protection scheme.

Talking about circumvention is not already selling "devices, products or components or the provision of services" in the sense of Article 6 of the 2001 directive, implemented without substantial change in Article 95a of the new German copyright law.

It's another question if that makes much sense, especially in a case like the Halderman/SunComm circumvention, where there really is not much need for technology once the idea for the circumvention is widely known.

But the law in the books right now still doesn't make it a crime to discuss circumvention. As well it should not, in my humble opinion.

Posted by Karl-Friedrich Lenz at 07:45 PM | Comments (0) | TrackBack

November 13, 2003

Eolas Patent Re-Examination

The illegally granted harmful and obnoxious Eolas patent will be re-examined, marking an "unusual" victory for the W3C opposition. See this article by Dale Dougherty for details.

Link credit: Dan Gillmor.

Update: This article by Jonathan Krim in the Washington Post says that since 1981 only 157 such reviews were ordered, amounting to about 2 percent of the requests for such reviews.

Posted by Karl-Friedrich Lenz at 12:49 PM | Comments (0) | TrackBack

November 09, 2003

Patent Information Usage

The European Patent Office has published a report on usage profiles for patent information.

This eubusiness.com article gives an overview.

Posted by Karl-Friedrich Lenz at 06:35 PM | Comments (0) | TrackBack

November 01, 2003

W3C Fights Against Eolas Patent

Tim Berners-Lee has written to the American patent office to demand a re-examination of one of the many obnoxious Internet patents. The Eolas patent.

This particular harmful and obnoxious patent covers the simple idea of plugging other programs into a browser.

The owner of that illegally granted harmful and obnoxious patent has already pressured Microsoft into considering crippling their widely used browser software. If it is allowed to stand, it will have devastating effects on the future of the web, as well as the potential to serve as a standard reference case for people calling for complete, wholesale abolition of the patent system as such. Whoever considers defending this kind of abuse should think very carefully if they don't mind contributing to the cause of complete abolition of the system.

The disruptive effects on the whole web have called the W3C into action. The last time someone tried to fight the W3C they found themselves "washed over by a powerful river". That was the Intermind patent, see page 94 in my book "Grenzen des Patentwesens". Drummon Reed of Intermind said in a later interview, as an answer to the question "So asserting a web patent is problematic?"

"What people are finding is that trying to put up a patent in front of the rapidly flowing river of the web is like trying to dam it. But the river is so powerful that it will simply work around you, or wash over you. We were the first company that said we are not going to contribute IP royaltee-free to a W3C standard. And look what happened!"

It will be interesting to see if that power is still strong enough to defeat this obnoxious patent. I sure hope so.

Link to the W3C found at Lessig Blog.

Posted by Karl-Friedrich Lenz at 05:27 PM | Comments (0) | TrackBack

October 30, 2003

Entertainment Value

of the US patent system reaches a new peak here.

Found at Copyfight.

Posted by Karl-Friedrich Lenz at 08:12 PM | Comments (0) | TrackBack

October 19, 2003

German Software Patent in Action

Heise reports on a German software patent that is actually used to ask for damages.

That patent covers using geographical locations in web addresses. For example, if someone is selling sports goods in Hamburg and uses sports-hh.de as a web address, they would be infringing.

This kind of web address is popular in Germany. So if someone could own this idea and skim off a thousand dollars from several thousand small businesses, that would result in an interesting cash flow.

On the other hand, European trademark law clearly states that geographical indications have to be kept free, see Article 7 par. 1 c) of Regulation 40/94 and this recent report on a decision of the Court of First Instance on this question at IPKat.

And software patents happen to be clearly illegal in Germany right now, even if they don't conflict with trademark law.

So I would be surprised to see any claims for damages based on this patent go anywhere. The Heise report says that the lawyer who wrote a large number of letters demanding damages has already backed off.

It is too early to say what will happen with this case. However, it is an extremely interesting example for seeing what kind of bogus claims will start to get floated if Europe legalizes software patents.

Posted by Karl-Friedrich Lenz at 08:26 PM | Comments (0) | TrackBack

October 18, 2003

FFII UK

The Foundation for a Free Information Infrastructure UK has a new website up, concentrating on the fight about software patents in Europe.

Posted by Karl-Friedrich Lenz at 06:47 PM | Comments (0) | TrackBack

Electronic Filing

Axel H. Horns points to this press release of the German Patent Office (in German): Filing patents over the Internet is open for business since October 15th.

Posted by Karl-Friedrich Lenz at 09:59 AM | Comments (0) | TrackBack

October 12, 2003

IPKat Patent of the Month

is the human free-flight catapult.

Posted by Karl-Friedrich Lenz at 03:41 PM | Comments (0) | TrackBack

October 06, 2003

System Failure Report Patent

Heise points to this recent United States Patent Number 6,629,267 awarded to Microsoft on September 30 on a "method and system for reporting a program failure".

Basically it seems to cover using the Internet for automatic reports to a software vendor if one of his programs crashes.

I assume that it is not illegal - yet - to use the Internet to report a failure or a complete crash of the patent system as such to the interested public. Even without a license from Microsoft.

But this is another nice example of a questionable patent showing clearly the danger of following the American lead in extending the patent system to software and Internet patents.

Posted by Karl-Friedrich Lenz at 06:29 PM | Comments (0) | TrackBack

October 04, 2003

Third World Patents

IPKat is reporting from a debate on the question if IP rights damage the third world.

I think that the patent system is under the strongest pressure when confronted with questions of life and death in the third world. This CPTech page is a good starting point to get information on this issue, as is the IP-health mailing list.

See also my June 1 post on the new EU regulation establishing a voluntary system of tiered pricing to address this problem.

Posted by Karl-Friedrich Lenz at 08:49 PM | Comments (0) | TrackBack

Left Wing Politics

is calling for stronger intellectual property rights protection, says John Cahir as a guest blogger on IPKat.

I agree with his point that intellectual property is a category of corporate and creator welfare that encroaches on individual liberty.

I don't have an opinion if that position should be labeled "left" or "right". That label doesn't seem to matter much.

Posted by Karl-Friedrich Lenz at 08:37 PM | Comments (0) | TrackBack

Enforcement Directive

Janelly Fortou's JURI report on a proposal for a directive of the European Parliament and the Council on measures and procedures to ensure the enforcement of property rights is online at the Parliament website, as well as a working document on the matter.

There is a lot of criticism to this proposal. See this IP Justice page , this FFII page and this critical analysis by Ross Anderson.

Posted by Karl-Friedrich Lenz at 01:29 PM | Comments (0) | TrackBack

September 26, 2003

Horns Blog on Patent Vote

Axel H. Horns has a blog here. Just added it to my blogroll.

He points to a pdf-file of the text that was actually adopted in the EU Parliament on software patents.

And there is some preliminary comment from Horns. He called the vote an "earthquake in the patent landscape". And he has some unfriendly words like "nonsense" and "the text as amended by Parliament is rubbish" for the vote.

I'm not sure if that will help him make friends for his position in the European Parliament. These Members of Parliament are, after all, elected to debate and decide about important questions like this one. That's democracy. Dismissing the result of their work as "rubbish" might possibly backfire.

And I also hesitate to agree unconditionally with Horns's assessment that it is "completely nonsense" to believe that Article 52 of the European Patent Convention bans computer programs from patentability. Actually I would be guilty of believing this "complete nonsense" myself, as I have explained in detail in my book about the question "Grenzen des Patentwesens" (in German), see the link at the top of the left side bar.

As far as I know, this is the first time the question of software patents was ever debated in a parliament in any country worldwide. As the German highest Court, the Federal Constitutional Court affirmed just the other day (scroll down to numbers 67-71, in German), in a democracy important questions need to be decided by parliament, not by the executive (Wesentlichkeitstheorie). That case was about the right of a muslim teacher to wear a headscarf in class. If that is so important that it needs debate in parliament, then the question of software patents is too. Probably even more so.

So no, I don't think it would do to dismiss the European Parliament's will as rubbish and pretend that nothing happened. Of course the patent movement might try to sneak software patents on us anyway behind closed doors in a revision of the European Patent Convention. Frits Bolkestein threatened that quite unabashedly. That however, would seem to be against the democratic principle, as stated by the Federal Constitutional Court.

But then again, amending the European Patent Convention would need ratification in Germany and other Member States of that Convention. And in Germany, that would need a majority in Parliament.

That means that there really is no work-around to avoid a democratic debate for the patent movement. If they try to go the Patent Convention amendment route, they will face the problem of getting that amendment ratified in all Member States.

That won't be easy. There really is a lot of opposition to these plans all across Europe.

Link to New York Times article about the vote found at Weatherall's Law.

Posted by Karl-Friedrich Lenz at 05:22 PM | Comments (2) | TrackBack

September 25, 2003

Software Patents Directive Vote

FFII reports that the European Parliament voted for real limits to software patents. FFII has also a transcript of the debate in Parliament up here. The debate shows that many of the speakers have actually listened to the opponents of legalizing software patents.

This is good news, for the time being. Of course, it remains to be seen what happens finally to the proposal. However, the "bumpy ride" predicted for the proponents of software patents has clearly materialized.

Posted by Karl-Friedrich Lenz at 08:51 PM | Comments (1) | TrackBack

September 22, 2003

Torvalds Letter to European Parliament

on the software patent vote is here, with a slashdot discussion here.

Posted by Karl-Friedrich Lenz at 05:21 PM | Comments (1) | TrackBack

IP Justice Software Patent Pages

IP Justice has some pages up on software patents and the discussion about the proposed EU directive here and here.

Posted by Karl-Friedrich Lenz at 04:50 PM | Comments (0) | TrackBack

September 20, 2003

"The US" on Software Patents

The Mission of the United States of America to the European Union has sent a statement about the software patents directive to Members of Parliament on September 16. The most important parts of the statement are reprinted and refuted at this FFII page.

As an opponent of the plans to legalize software patents, I am very happy with the outspoken US support for the directive at this crucial timing.

This support shows again clearly that it is not in the interest of the European software industry to legalize software patents. This move will only help the American companies who hold most of the software patents already granted illegally.

Posted by Karl-Friedrich Lenz at 11:43 AM | Comments (0) | TrackBack

September 11, 2003

IPKat Patent of the Month

for September is the motorized ice cream cone.

Posted by Karl-Friedrich Lenz at 12:38 PM | Comments (0) | TrackBack

European Patent Translation

Axel H. Horns has posted two draft bills concerning the ratification and implementation of the "London Agreement" on translation of European patents here and here (in German).

Posted by Karl-Friedrich Lenz at 12:16 PM | TrackBack

September 04, 2003

Some More McCarthy

Arlene McCarthy has published another press release on the software patent directive.

Again, McCarthy is worried about the effects on international competition if the proposal to legalize software patents is rejected. She says:


"Arlene warned that campaigners against patents for computer implemented-inventions risk seriously undermining European Industry's interests by putting them at an extreme disadvantage in the global marketplace and putting at risk jobs in the growing software industry.

"If we were to follow the demands of these lobbyists then we would be handing over inventions to US multinationals and getting no return on our R&D investments in the field of computer implemented inventions.

"This will sound the death knell for our brightest and best European inventors, whilst the US and Japan will demand licence fees from European companies for the use of their patents. Without patent protection there will be no financial incentive for our most creative industries to develop genuine inventions."

As I have said before: Anybody is free now to get software patents in America and Japan. Nobody can do so in Europe (at least no one has tried to actually enforce any of the European software patents illegally granted by the EPO). So where is the "extreme disadvantage in the global marketplace"? The conditions are the same for all players.

And today I thought of a new way to make this clear to everyone. Take the case of the negotiations recently concluded on patents for AIDS medication.

Nobody in that discussion said: "We need strict patent law enforcement in developing countries to avoid putting their pharmaceutical industries in a extreme disadvantage in the global marketplace."

That's because there are no pharmaceutical industries in most of them. So in that case, the patent enforcement only benefits the patent holders in developed countries. It is clearly a choice between protecting their profits and saving lives of patients dying because they can't afford to pay the patent rents.

Having a patent law system enabling you to get patents in your country is something very different from actually having patents.

McCarthy's position is equating these two things. If legalizing software patents would mean that Europeans would get more software patents than American and Japanese competitors, her idea would be correct.

However, in the real world, it's the other way round. Most of the illegally granted European software patents are not held by European companies.

So legalizing software patents makes about as much sense for Europe in pure economic terms as strict enforcement of pharmaceutical patents all over the African continent: It only helps American interests.

Posted by Karl-Friedrich Lenz at 11:24 PM | TrackBack

August 30, 2003

Software Patents Delayed

The president's commission of the EU Parliament has decided to postpone the debate on a proposed directive to legalize software patents in Europe. It was scheduled for September 1st, but will be delayed at least until September 22.

Many are critical of the proposal. There have been some demonstrations.

This is at least a temporary success for those resisting the proposal. It seems that the prediction of a "bumpy ride ahead" for this proposal is fulfilled already.

Posted by Karl-Friedrich Lenz at 12:59 PM | Comments (0) | TrackBack

August 14, 2003

Software Patents Mutual Defense

Bruce Perens recently called for

"all Open Source projects to incorporate mutual software patent defense terms into their licenses. Under these terms, if one Open Source developer is sued for patent infringement, all of the licenses of Open Source software used by the plaintiff terminate. If people are going to pursue us with software patents, the least we can do is make sure they don't profit from our software. Software patent mutual defense terms are in licenses being developed by Larry Rosen of the Open Source Initiative. These licenses are still evolving. There may be anti-trust problems with them that we haven't yet worked through. It may be a problem getting the Free Software Foundation to accept such terms, simply because they are uncomfortable with adding restrictions. But I think they can be won over to the idea. "

Actually, the IBM public license already has language terminating all rights from the date a patent lawsuit is filed in Section 7. This, however, is probably not yet a "mutual software patent defense", since the rights terminated are only those from the IBM license for the specific Open Source software covered, not those from all Open Source software.

I agree with Perens that this is the very least Open Source software authors should ask for. If someone is abusing the patent system for harassing Open Source projects, they should not keep their rights to use Open Source software. If, for example Amazon was suing some Open Source projects over their "one-click" patent, the very least one would expect is that they would be barred from using Open Source software for their Internet servers.

However, I tried to explain this to Richard Stallman by e-mail last year (I have written in my book "Grenzen des Patentwesens" about that mail exchange in detail). I am sorry to report that I was not able to convince him. I hope that Bruce Perens will have more success.

Posted by Karl-Friedrich Lenz at 06:06 PM | Comments (0) | TrackBack

August 05, 2003

Red Hat vs. SCO

Larry Lessig points to this Red Hat press release: They have filed a lawsuit against SCO to stop SCO from making "unsubstantiated and untrue public statements". And they have kicked off an "Open Source Now Fund", pledging one million dollars, to pay for legal expenses for defending Open Source software against SCO-type attacks.

The complaint is here.

Posted by Karl-Friedrich Lenz at 11:59 AM | Comments (0) | TrackBack

August 02, 2003

Westlaw Patent Research

Rainer Langenhan points me to this press release: Westlaw integrates the Delphion patent search service.

Posted by Karl-Friedrich Lenz at 10:37 AM | Comments (0) | TrackBack

Patents and Competition Law

The Commission has started a formal anti-trust investigation against the pharmaceutical group AstraZeneca, according to this eurobusiness.com article.

The Commission says that they have obtained additional protection terms for a popular drug by lying to patent offices ("misrepresentations").

If that investigation leads to a decision imposing a fine, patent holders would face a new risk. They would have to consider not only the chance that their patent might be held unenforcable, but on top of that the risk that they might face an anti-trust investigation.

Since patents are based on awarding the patent holder a legal monopoly on the invention, they are basically working exactly in the opposite direction of anti-trust law. So it makes sense that the Commission objects to abuses of the patent system.

Posted by Karl-Friedrich Lenz at 10:11 AM | Comments (2) | TrackBack

July 12, 2003

Why the Fight Over Software Patents is Important

Eurostat reports that the total share of information technology patents in Europe has more than doubled since 1990.

That share was at 6.1 percent in 1991, but rose to 15.5 percent until 2001.

Posted by Karl-Friedrich Lenz at 08:08 PM | Comments (0) | TrackBack

July 10, 2003

I Was Wrong

to say "absolutely no limits to patentability left" about the American patent system. That statement is slightly exaggerated. Thanks to Trevor Hill for pointing this out in a comment.

The American patent system is not completely out of control. It is not running amok.

It just looks that way compared to European standards, if I hear that the American system accepts patents on insuring against gambling losses or against divorce (thanks to Rainer Langenhan for the pointer).


Posted by Karl-Friedrich Lenz at 08:58 PM | TrackBack

July 08, 2003

Patent Bending

LawMeme links to this article in The New Yorker about the questionable legitimacy of business method patents.

Clearly the American patent system is completely out of control, running amok. With absolutely no limits to patentability left, it is only a matter of time until we will see a discussion on abolishing the system altogether. Patent attorneys should worry about this scenario and stop pushing the envelope, and instead start some efforts on preserving a balanced patent system.

Posted by Karl-Friedrich Lenz at 02:04 PM | Comments (1) | TrackBack

June 18, 2003

Bumpy Ride Ahead?

The Legal Affairs Committee of the European Parliament voted on June 17th to go ahead with legalizing software patents in Europe.

The Greens in the European Parliament have published a critical statement on the vote. Member of the European Parliament Mercedes Echerer is quoted with:

"You can be sure that the report will have a very bumpy ride when it goes to plenary in September with one third of committee members in opposition."

Fasten your seatbelts. Even if the directive proposal gets approved in Parliament, that won't be the end of this debate.

Posted by Karl-Friedrich Lenz at 11:50 AM | Comments (0) | TrackBack

June 16, 2003

The Principles of Mr. Eric J. Heels

Eric J. Heels states this on the debate on software patents:

"A bad argument is easy to spot. Simply substitute "automobile" for "software." If the argument makes the same amount of sense, or the same amount of nonsense, one can only conclude that the author is against all patents and/or has made no real effort to differentiate between software patents and patents in general."

He then goes on to use one of my arguments to illustrate the point and seems to conclude that my argument is "bad" and "unprincipled".

So his conclusion from the "principle" above is that I am against all patents and/or that I have made no real efforts to differentiate.

At least the first conclusion is wrong. I have written in my book on software patents on the question if the patent system should be dumped as a whole, but did not call for abolition. And I think also now that it is too early for that. However, if the patent inflation merrily proceeds unchecked, I would not be surprised to see a serious debate about getting rid of the whole system in the future.

So empirical evidence shows that Mr. Heels' "principle" is wrong.

I also think it is rather arrogant of him to make statements about the "credibility" of Larry Lessig. And, if I may say so, I have a different view about Lessig's credibility.

But even if his principle is refuted by an empirical test, it might still make some sense in a theoretical way.

What would I have to do to avoid the dreaded curse of violating the Heels principle?

Obviously, I would have to limit all of my statements to things that make sense for all kinds of patents.

That would mean that I can't say anything about the proposal to legalize software patents. Any statement about that question necessarily has to limit its scope. The proposal itself is violating the Heels principle, since most of its content would make no sense whatsoever if you substitute "automobile" for "software".

Hey, Mr. Heels just gave us a new reason to oppose the directive proposal! IT VIOLATES THE HEELS PRINCIPLE! What more do we need?

Mr. Heels says that he values dialog with disagreeing positions. So do I. However, I don't particularly appreciate having words substituted in my comments. Next time, please address what I have actually said, as opposed to what I might have said if you edit my argument.

Posted by Karl-Friedrich Lenz at 11:47 AM | TrackBack

More McCarthy

Greplaw points to this open letter to the Guardian in which Hartmut Pilch discusses Arlene McCarthy's recent Guardian article on software patents line by line.

There is also this Slashdot discussion on the McCarthy article.

Let's take a look at another one of McCarthy's points:

"If the EU does not take the step to develop its competence with regard to computer-implemented inventions, then the EPO and its board of appeal will continue to be the main arbitrators of the law. This will continue to create confusion and uncertainty and will sidestep the democratic scrutiny of the EU."

To achieve that the proposal would need to give people a way to appeal EPO decisions to the European Court of Justice. Which it doesn't.

If the opposition sinks the proposal, the EPO will continue to ignore the clear law in Article 52 of the Convention that makes software patents illegal.

And if the proposal sails through, the EPO will ignore whatever restrictions the proposal contains and grant business method patents, patents on mathematical formulas, tax law procedure and everything else. The present state of the art in the awarding of illegal patents may be easily accessed at the European Software Patent Horror Gallery.

The EPO is dominated by the patent inflation side. It would be a great idea to take away their stronghold on the application of the law.

However, the software patent directive proposal unfortunately does not contain anything that would help to do that.

As I have pointed out before: If the directive is adopted, that will change the law. But it will change nothing concerning the role of the EPO. The EPO will continue to be the "main arbitrators" of that new, changed law.

Posted by Karl-Friedrich Lenz at 12:06 AM | Comments (0) | TrackBack

June 15, 2003

McCarthy Guardian Article

Arlene McCarthy answers in an article in the Guardian to the recent attack on her project to sell out the European software industry to the American software patent lobby by Richard Stallman and Nick Hill.

There is not much of a new idea in that article, so most of its arguments are already dealt with by what what I have said before about her position.

Therefore, I will focus only on the question of international competition.

McCarthy writes:

"We must legislate to ensure our inventors are not put at a disadvantage in the global market place. If we fail to offer European industry the possibility of patent protection, we will hand over our inventiveness and creativity to big business, who can cherrypick ideas and patent them. The perverse outcome would be that European originators of those inventions face infringements proceedings from the big players. It is this that will lead to job losses, less choice and higher prices!

If we fail to provide the possibility of patent protection, no one can get software patents in Europe. No Europeans, no Americans, not IBM or Microsoft, not a college student with an idea. Nobody.

The idea that software patents in Europe will only be applied for by Europeans and software patents in the U.S. only by Americans is obviously not correct. Actually, most of the illegally granted software patents in Europe are secured by American software firms.

So how exactly is "big business" supposed to "cherry-pick and patent"?

McCarthy's text could be read to make some sense if you understand "cherry-pick and patent" as "patent in the U.S." (or some other country that has legalized software patents).

But if big business can do so, the original European developer can apply for a patent in the U.S. as well. At less cost as for a European patent.

So let's try to get this right.

If McCarthy's proposal of legalizing software patents sails through, everybody can start enforcing software patents in Europe with infringement lawsuits. Americans, Europeans, Asians, big business, high school students, everyone.

But that's only the theoretical side.

In practice, most of the illegally granted European software patents are owned by American companies. The practical effect of McCarthy's proposal will be a large net flow of license payments from the European to the American software industry.

I fail to see how that will contribute to the competitiveness of the European industry.

So it's exactly the other way around. McCarthy says she's concerned that Europeans should not be at a disadvantage. But her proposal, far from removing any disadvantage, will place an additional burden on European firms in their race to catch up with the American software industry.

Posted by Karl-Friedrich Lenz at 12:28 AM | TrackBack

June 07, 2003

Stallman and Hill

The Guardian has an article by Richard Stallman and Nick Hill on the proposal to legalize software patents in Europe.

They have one interesting argument I haven't heard yet: Why should the EU investigate Microsoft for monopolistic practices and give them new monopolies (software patents) at the same time?

Link credit: digitalconsumer.org.

Posted by Karl-Friedrich Lenz at 07:30 PM | Comments (0) | TrackBack

June 01, 2003

Tiered Pricing

The EU council has adopted a regulation that establishes a voluntary system for exporting essential medicines at strongly reduced prices to developing countries. Manufacturers using that option can mark their products for export and prevent re-importing and distribution to the EU, which will be illegal.

This is applicable to both patented and generic products, but it is one possible solution to the conflict between protecting patients and protecting patents.

Link credit: eubusiness.com.

Posted by Karl-Friedrich Lenz at 06:09 PM | Comments (0) | TrackBack

May 30, 2003

Patenting SARS

Mail from Rainer Langenhan points me to this article about the possibility of patenting the SARS virus and related diagnostic products or drugs.

I have written some comments on this in "Grenzen des Patentwesens" (in German). While some patent attorneys assume that the case for the patent system is strongest when discussing developing drugs, I think that it is the other way around. The patent system may well face the strongest opposition in this area. Slowing down the spread of diagnostic products and drugs that can help contain the SARS threat to assure some shareholders of a profit may prove as an extremely hard sell to a public already in panic.

Posted by Karl-Friedrich Lenz at 11:09 PM | TrackBack

May 29, 2003

Ebay Patent Case

A jury decided against Ebay in a patent case, awarding $35 million to the patent holders. Ebay is set to appeal the decision.

Link credit: Be Spacific and mail from Rainer Langenhan.

Posted by Karl-Friedrich Lenz at 11:44 PM | Comments (0) | TrackBack

May 27, 2003

SPLT

That's "Substantive Patent Law Treaty". There is some discussion at WIPO about a treaty to harmonize substantive patent law worldwide.

Rainer Langenhan pointed me to this report on the latest meeting of the Standing Committee on Patents. Thanks for the link. It appears that the Committee made some progress on several issues while avoiding most controversial points (like public health, genetic ressources and traditional knowledge). They might continue the discussion some time in 2004.

Posted by Karl-Friedrich Lenz at 07:30 PM | Comments (0) | TrackBack

May 22, 2003

W3C Patent Policy

Tim Berners-Lee has posted a decision on a new patent policy for the WWW Consortium. That policy strongly advocates royaltee-free standards, while leaving a special procedure to decide about exceptions.

I have objected to the original version of the patent policy in October 2001, so I am pleased to see a result that will lead to more freedom for using W3C standards.

Posted by Karl-Friedrich Lenz at 09:26 PM | Comments (0) | TrackBack

May 20, 2003

EU Software Patents Delayed

This article says that the decision in the European parliament on the proposed directive legalizing software patents has been delayed by a month.

Maybe the resistance to that policy change has scored at least a temporary success.

Posted by Karl-Friedrich Lenz at 11:12 PM | Comments (0) | TrackBack

May 15, 2003

Patent Lawfirm Ranking

in this article on law.com.

Thanks for mailing me the link to Rainer Langenhan.

Posted by Karl-Friedrich Lenz at 09:00 PM | Comments (0) | TrackBack

Settlement Amounts

for patents, copyrights and trademarks are ranked in this article by Gregory Aharonian.

Link credit: BeSpacific.

Posted by Karl-Friedrich Lenz at 01:18 PM | Comments (0) | TrackBack

May 14, 2003

Arlene McCarthy Paper

Arlene McCarthy has some highly sensible views on a wide range of subjects published on her website.

On the other hand, I hesitate to agree unconditionally with her latest "note" to participants of the software patents conference in Brussels on 7/8 May.

I would like to offer a few comments.

"If the EU does not take the step to develop its competence with regard to computer-implemented inventions, then the EPO and its boards of appeal will continue to be the main arbitrators of the law. This will side step the democratic scrutiny of the EU.

If the directive is adopted, that will change the law. But it will change nothing concerning the role of the EPO. The EPO will continue to be the "main arbitrators" of that new, changed law.

"At a time when many of our traditional industries are migrating to Asia, and when we Europeans are having to rely on inventiveness to earn our living, it is important for us to have the revenue secured by patents and the licensing out of ideas.

Legalizing software patents will lead to licensing revenue for American patent holders. The European industry will end up paying more than receiving. And be actually prevented from making a living by developing open source software.

"Thousands of patents have been granted by the European Patent Office and by Member States' national offices for technical inventions which involve computer programmes: currently as many as 15% of patents granted involve software.

During this time all sectors of the software industry, including the open source movement, have developed strongly. Patents are available only for programmes that offer a new technical solution."

Yes. There is a large number of illegally granted software patents.

But none of them have actually been enforced up to now. And since the granted patents are illegal right now, they can't be enforced. That will change if this proposal passes. Don't try to tell us that nothing will change: If so, the proposal would do nothing and should be dumped because it serves only to confuse the issue.

"As current law is not clear, uncertainty and lack of transparency would remain. This uncertainty is a brake on growth in the industry, and is allowing the scope of what is patentable to expand, contrary to wishes expressed throughout the EU."

Current law is about as clear as it can get. Software is excluded from patentability. Whatever final version of the directive passes, it will be much more complicated and much less transparent than current law.

"With regards to calls for abolishing, within the EU, all patents on computer-implemented inventions, EU companies would be at a severe disadvantage in the global market place if they were not able to apply for a patent over their invention."

This is the most important error in McCarthy's statement. It is also very easy to refute.

American and EU companies have the same rights worldwide. American companies can apply for and receive American software patents. So can EU companies. The misguided American practice of granting software patents, Internet patents and business method patents works for and against anyone in the marketplace in the same way.

American companies can apply for and receive European software patents, since the EPO doesn't obey existing law. So can EU companies. But no one can enforce them in Europe. At least no one has tried so far, as far as I know.

Anything else than full equality for all participants in the marketplace would be violating international treaties on the subject. See Article 1 paragraph 3 TRIPS.

So where is the "severe disadvantage in the global marketplace"?

Actually, it's the other way round. The fact that the software patents disease has not yet infected Europe as seriously as America and Japan is a "serious competetive advantage" for the European software markets.

It means that people can actually concentrate on developing useful software, instead of wasting large percentages of their attention and money on dealing with the patent system.

It means a safe haven for open source development, which is fundamentally not compatible with software patents.

It means more investions in software development, as I have pointed out before.

It is unfortunate that Ms. McCarthy was not able to attend the conference. But her paper gives some interesting insights. Even if I don't agree with her position, I appreciate the chance to discuss her point of view.

Update May 15: FFII has a page up on this.


Posted by Karl-Friedrich Lenz at 12:26 PM | Comments (0) | TrackBack

Arlene McCarthy Complains

Arlene McCarthy complained that FFII was deliberately trying to keep her voice from being heard in the debate on software patents by delaying informing her of the Brussels conference.

I guess she isn't reading this blog. I mentioned the conference in a post here on April 21.

That's okay, of course. Billions of people don't read Lenz Blog.

But I am mildly surprised that the most important Member of the European Parliament in this debate somehow missed to take note of that event. If I can find out about it on April 21, so could anybody else with an interest in this question.

If they are not sleeping at the wheel.

So Arlene McCarthy complained that she was clueless about this conference. She addressed the wrong person. She has only herself - and her staff - to blame for missing this. Anybody paying basic attention should really need no extra pointer.

And then she goes on to suggest that people were trying to censor her voice in the debate. She is worried about "the most rudimentary principles of democratic debate".

That seems to be a misguided observation.

As a reporter in the JURI committee, Ms. McCarthy has more influence on this debate in the European Parliament than everybody else on the planet. There is really no chance whatsoever that she might have no sufficient occasion to state her point of view. So I don't see any particular danger for the principles of democratic debate here.

But then I might be biased. In my humble opinion, McCarthy is helping the enemies of freedom to sell out the European software industry to American patent lawyers. So I don't understand why anyone should be obliged to reserve speaking time for her in a conference organized by the opponents of the software patent directive.

"Rudimentary principles of democratic debate" give everyone organizing a conference the right to choose who they want to invite as a speaker. So rather than complaining to FFII, maybe Ms. McCarthy could arrange for the BSA to invite her instead.

They might be so happy to have her to even consider some campaign contributions.

While it is unfortunate that Ms. McCarthy missed out on an opportunity to speak in person, the damage is somewhat mitigated by the fact that she presented FFII with a paper stating her point of view. People are free to read it here.

That paper requires a seperate post to deal with.

Posted by Karl-Friedrich Lenz at 11:33 AM | Comments (0) | TrackBack

May 13, 2003

Standards and Patents

Dan Gillmor posts on his blog and writes in his column about recent cases where some company participated in standard setting and asserted patent rights to the standard later.

The legitimacy of asserting patents is especially open to question in this situation. The damage done by software patents is largest when a standard is affected. Standards tell everyone "use this", while patents say "don't use this" (except with paid permission), so they are basically working in opposite directions.

Posted by Karl-Friedrich Lenz at 05:15 PM | Comments (0) | TrackBack

May 10, 2003

Brussels Conference

against the proposal to legalize software patents in Europe is described in this article from Computerweekly.com. From the article:

Laura Creighton, co-founder of Swedish groupware developer AB Strakt and of a British publishing software company called Reportlab, said, "If Europe adopts this software patent law I’m going to have to redirect millions of dollars I planned to invest in European software firms into a fund to cover patent infringement suits."

The question will be: What is the most effective way to invest money in defending against software patent lawsuits?

Posted by Karl-Friedrich Lenz at 10:15 AM | Comments (0) | TrackBack

May 08, 2003

Commission Strategy

The new Commission Internal Market Strategy 2003-2006 Communication released on May 7 calls on the Council and Parliament to rapidly adopt the Directive on the patentability of "computer-implemented" inventions (page 22 of the PDF-file).

There are no new reasons given for this, leaving only the misguided ones in the original proposal, which I have discussed here and here. But this call for rapid adoption is presented in a chapter 6 "Improving Conditions for Business".

The only business that will see improved conditions will be that of patent lawyers and that of American corporations receiving license fees from European SME software developers. And that of the Patent Offices, of course.

Posted by Karl-Friedrich Lenz at 11:43 PM | Comments (0) | TrackBack

Good Internet Patent

How can any software or Internet patent be good news?

This one is.

The reason is simple.

That patent wants a monopoly on the obnoxious practice of pop-up ads. Any possible effect it will have will work to limit the amount of this kind of annoying advertising.

So it's actually a good thing. And people should file for 1001 complicated patents on other spam techniques as well. I assume it's already done. That way the spammers will get sued by the Internet patent holders, leaving everyone else hoping that both sides will lose.

Patents Impeding Technological Advances (PITA) are great if they stop or slow down the spread of technology that shouldn't be there in the first place. So while I am generally rather critical of Internet and software patents, I have to admit that they can actually be useful in some cases, even if not in the intended way.

I for one am one Internet user who does not hate this news.

Posted by Karl-Friedrich Lenz at 03:42 PM | Comments (0) | TrackBack

May 06, 2003

SARS Patents?

Dan Gillmor reports on a Wall Street Journal article: There seem to be patents around which would possibly gain a lot of value associated with the SARS outbreak. He notes that opinions are divided about whether it would be ethical to profit from this crisis.

Some people think that drug development is a case where the usefulness of patents is especially self-evident. However, the SARS outbreak might provide some arguments against this opinion.

Posted by Karl-Friedrich Lenz at 11:32 PM | Comments (0) | TrackBack

May 05, 2003

EU Discussion

An anonymous post from a discussion on slashdot on the EU software patent directive:

I'm an American, and since I know how much you Europeans despise us, I think the best wake-up call for you guys is to remind you that SW patents will completely and utterly favor us Americans.

MSFT is American. IBM is American. Oracle is American. Americans have had years of experience developing patented SW technology. The only pieces of SW that I can think of that is European is SAP and MP3.

If Europeans decided to adopt SW patents, the US would eat you guys alive! They would send all their lawyers to Europe and patent everything and your mother. Not because we are smarter, but because we have much more experience in thinking of how to patent things.

How the hell could Europeans trust US technology, especially after things like Echelon being used to provide business intelligence against European bids?

The only way to do it is to keep Europe SW Patent free and allow Linux to develop unfettered, including using American patented SW technology freely. Right now, the only way that Europe will ever get an edge over the US is through Linux. European govenments don't have to worry about any backdoors in Windows, they don't have to worry about paying extra fees, or being held hostage by the patent developed by US companies.

The way it's going now, with all this patent tyranny that is going on the in the US, the only safe haven for Linux is in Europe, if and only if they keep patents out of Europe!

Call your representative and stop this insidious process of patentizing Europe!!!

I am not sure if all Europeans "despise Americans". I for one disagree with the Bush government's attitude regarding international relations, but make a point of stressing the fact that the Bush government is not all of America.

However, the illegal war sure has squandered a lot of American good will in Europe. So the argument that legalizing software patents in Europe will harm the European industry by making them pay license fees to American corporations might have some more power than last year. Now the European Parliament might notice this as an opportunity to show the American government the consequences of treating everybody else like dirt.

Posted by Karl-Friedrich Lenz at 06:36 PM | Comments (0) | TrackBack

April 29, 2003

The Bright Side

The European Parliament is debating a proposal to legalize software patents, and people like Richard Stallman and Larry Lessig are scheduled to speak against this project on a conference in Brussels next week.

Last week I did a reprint of something I wrote in March 2002 in opposition to the legislation plans.

Here are some short thoughts about how I see the question today.

1. Reasons for opposition to the proposal

a) The European Parliament should listen to the over 140.000 European citizens who have signed the petition against software patents.

b) Legalizing software patents will damage European economic interests. Most software patents are held by big American companies. Those will profit from license revenues, to be paid by European software developers.

c) There is no need to harmonize. All member states already have the same law in their books. If anything, having a directive and the European Patent Convention talking about software patents at the same time adds to the confusion around an already difficult problem.

d) Basically, patents are monopoly rights. Legalizing them for the software sector will obviously reduce competition there. This is incompatible with the strategic goal of the EU to become the most competitive and knowledge-based economy in the world.

It does not make much sense to abolish all monopolies in the telecommunication sector just to introduce a massive number of new monopoly rights in the sector most important for the "knowledge-based economy" a few years later.

e) The Draft Report says that the directive would not bring any new law, only clarify existing law (see amendment 7 to recital 14 on page 9). This is not true: The directive would legalize several ten thousand software patents which have already been issued illegally by the European Patent Office.
However, if that statement was actually true, again there would be no need for the directive. If it does not change anything, the only thing it does is add to the confusion.

2. The bright side

I am not sure if the opposition against software patents will succeed. Quite possibly the Commission proposal will be approved, maybe with some amendments.

I won't exactly celebrate when that happens. However, I think there might be a bright side even to that development. Consider the following points:

a) European lawyers will finally get their fair share in the world-wide software patent lawsuit action. That will provide great jobs for lawyers. The newly founded Munich Intellectual Property Law Center will get lots of applications for their 23.000 Euro LLM program.

b) The European software industry will need to change. Software development companies will fire programmers and hire lawyers instead. This will boost their ability to compete in the American market, since they will get used to working as law firms with small development teams attached, as is necessary with the software patent minefields poisoning the American markets.

c) If the critics of the plan to legalize software patents are right, we will see a huge mess coming from this unfortunate business in the years to come. This will lead to a nice little debate about abolishing patents altogether, since the disastrous effects of software patents will be clear to everyone, but the difference to traditional patents only to the experts. The TRIPS treaty will be no problem, since the U.S. lately nuked the system of international law: everyone else can feel free to ignore TRIPS if they want to abolish patents. Which by the way is one of the bright sides of the illegal war in Iraq.

d) Opposition to software patents on a worldwide scale will be easier to organize. With the present safe harbor from the damage caused by software patents in Europe, Europeans have less incentive to start fighting in earnest. FFII is doing a great job. But the opposition to software patents will become more important - and better funded - if even more projects get taken down and absurd, broad patents no one understands or wants to read get actually used in European patent lawsuits. Patent inflation increases the need for a strong backlash in the same way as spam inflation the need for a strong reaction.

e) Proposals for fighting against software patents even if the politicians don't get a clue and let the patent movement get away with patent inflation as discussed in my book "Grenzen des Patentwesens" will become more important. More people might want to read my book, or this blog for that matter. Great news for me.

3. Conclusion

I hope that the opposition to the directive proposal is successful. But if not, that won't be the end of this fight. It will begin in earnest. And even if the other side wins this time: Eventually people will become fed up with this abuse of the system and find an effective way of shutting it down worldwide.

Posted by Karl-Friedrich Lenz at 07:51 PM | Comments (0) | TrackBack

April 28, 2003

Gillmor column

Dan Gillmor writes about grants in his latest column.

I have a few comments.

(Dan Gillmor) "Another disaster in the intellectual-property arena is the patent system, which has all but imploded on itself. The U.S. Patent & Trademark Office (PTO) is infamous for its willingness to issue absurd patents. This is creating a major drag on innovation as companies fight off unfair claims and spend uncreative time and money getting their own, defensive patents.

Some foundation should fund what amounts to a legal swat team that challenges bad patents. (There is risk in this approach: It might reward bad behavior at a policy level. Even if the PTO wanted to reform, Congress doesn't let the PTO use all the money that comes in from patent applications to hire better examiners, thereby helping to perpetuate a broken system.)

The main thing I have been saying in "Grenzen des Patentwesens" (in German): Sooner or later people will fight back against misuse of the patent system by organizing a collective response. I had not thought of grants as a possible source of funding at the time. So it is very interesting news to hear that Creative Commons received a 1.2 million dollar grant. There might be some serious money available for a "legal swat team that challenges bad patents" as well.

(Dan Gillmor) "But encryption still is not easy to use in basic communications such as e-mail, at least for the average person, and the marketplace hasn't responded. Some organization should seed the development of a robust privacy toolkit that includes easy-to-use encryption."

Actually that is already happening, the "some organization" being the German Federal Ministry of Economics and Technology and the privacy toolkit being called "GNU Privacy Guard".


Posted by Karl-Friedrich Lenz at 02:10 PM | Comments (0) | TrackBack

April 24, 2003

Wikipedia

has a page about software patents. I just added a link to the FFII page opposing software patent legislation in Europe.

Posted by Karl-Friedrich Lenz at 09:49 AM | Comments (0) | TrackBack

April 22, 2003

Most Obnoxious Patent?

Slashdot is pointing to an article about another broad Internet patent granted recently.

This might be a candidate for the title of "Most Obnoxious Patent". Broader than the Pacific Ocean, with 40 claims written in an abstract and indigestible language. No one would bother to read this kind of trash if not forced to do so by the patent system.

One of these days, people will get fed up with Internet patents. A large coalition of reason will look for the most annoying patents - as an object of determined and organized collective opposition with all legal means.

This patent might be considered at that time.

Posted by Karl-Friedrich Lenz at 01:48 PM | Comments (0) | TrackBack

April 21, 2003

Software Patents Reprint

FFII is planning a conference to stop the proposal for legalizing software patents in Europe on May 7 to 8.

For the occasion, I reprint something I wrote in March 2002 against that proposal. That text is also in my book "Grenzen des Patentwesens".

The version here is reduced: I don't include footnotes that point to texts which are not online.

Sinking the Proposal for a Directive on Software Patents

1. Sink the Proposal!

Being of the opinion that software patents should be abolished immediately, worldwide, I have not much sympathy for the recent European Commission proposal to change the long established rules and force software patents down our collective throats.

So I want to join others who are already fighting this proposal at full blast. We need to stop it as soon as possible.

This proposal is not like a seventy thousand ton aircraft carrier, but rather like a submarine surrounded by enemies. One torpedo should be enough to sink it for good. I am going to fire several torpedoes against it right now, and advise everybody riding on the proposal to get off the ship in time. These will have real warheads, aimed at destruction. Quite possibly they will all fail to hit the target; but I will try as hard as I can.

2. What do they want anyway?

The Commission says harmonisation is needed because there is some difference in the interpretation of the European Patent Convention between Member States. The Commission does not discuss the interpretation in all Member States; it limits its discussion to two Member States, Germany and United Kingdom; and it finds that the courts in these two Member States do not interpret the European Patent Convention in the same way.

However, the European Patent Convention is in force in all Member States, as the Commission correctly notes somewhere in the proposal. That means that already with the status quo there is one uniform legal text (Article 52 of the Convention) in force in all Member States. This obviously raises the question why the interpretation would become more uniform if instead of the uniform legal text in the Convention a new uniform legal text in a Directive gets adopted. If anything, having one text in the Convention and another in the Directive would mean that every court decision would have to address which of those two different texts it should follow, which would seem to lead to more confusion and differing opinions between Member States court decisions, rather than less.

This might be mitigated somewhat by the possibility of having the Court of Justice decide on the interpretation of a future Directive, which would seem to be the only real gain for the goal of having a uniform interpretation in all Member States.

It is very difficult to predict if the noble goal of avoiding confusion will be helped or rather damaged by introducing this legislation. We would probably have to wait and see. At least the legislator should have the benefit of doubt. But I think the following sentence is very much worth noting, and I want to call everyone's attention to it:

'Thus, patentees and the public at large who may be users of patentable matter currently lack certainty as to whether in the event of litigation patents which have been granted in this field will be upheld.'

This is what the Commission says in the 'need for harmonisation' part.

And this seems to be exactly what they want. I think that the current practice of the European Patent Office to grant software patents is clearly illegal under any conceivable understanding of Article 52 of the Convention. I think this is so, and that it is plain to see from the wording of that Article, but I do not intend to give any reasons for this opinion here, having done so in detail elsewhere (in German language). The point here is that no one has really tried to enforce these illegal software patents in Europe, since that would have meant fighting a real opponent in a real litigation, as opposed to discussing the best way to work around the wording of the Convention in collaboration with the European Patent Office in the quiet procedure before the Board of Appeal. That would have meant a real fight against someone hell-bent on proving that software patents are illegal, and indeed, the holder of a software patent would seem to 'lack certainty as to whether in the event of litigation patents which have been granted in the field will be upheld', and would therefore find his software patents unenforceable and worthless at the time (their usefulness for preventing walrus attacks notwithstanding).

So what the Commission wants is not harmonisation. What the Commission wants is not uniform interpretation. What the Commission really wants is that all software patents illegally granted already become enforceable by litigation. They want to open the box of Pandora.

So why do they say that the proposal is necessary for harmonisation, if that is not their real goal?

The answer is that they have to say that, so as to be able to make the proposal in the first place. They can't just get in the ring and say: 'Okay, we know that everyone hates software patents, but we want introduce them anyway, and we want to have lots of great litigation from all the software patents already granted to happen.' They need to say: 'We don't really want to change anything, but there are these horrible differences in interpretation threatening the freedom of movement of goods in the internal market. So we need to harmonise.'

This is not exactly telling the truth; this is only the superficial and pretended reason for the proposal, as opposed to the real reason. The Commission needs to pretend that it wants to harmonise when in reality it wants to change, because without pretending so, they would have no right to propose this legislation.

This reasoning is a noisemaker, intended to fool the torpedo looking for the submarine. We are not going to fall for that noisemaker. Instead, we are going to use our control wires to aim the torpedo right at the real submarine: This proposal is not about harmonisation. This proposal is not about legal certainty. It is about change. It wants to introduce software patents, which are illegal right now.

In the 'Frequently Asked Questions' file, my favourite answer consists of the following two sentences: 'In broad terms, nothing will be made patentable which is not already patentable. The objective is simply to clarify the law and to resolve some inconsistencies in approach in national laws.'

Okay, Commission, now take this first torpedo. If nothing will be made patentable which is not already patentable, then your proposal is doing exactly nothing at all and should be dumped because it adds to the confusion, rather than reducing it.

But we know that this isn't really true, don't we?

3. Democracy, Commission flavor

Next we will have a look at the way the Commission has dealt with the opinions presented in the consultations leading to this proposal.
The Commission says, in the section on the consultations:

'Thus although the responses in this category were numerically much fewer than those supporting the open source approach, there seems little doubt that the balance of economic weight taking into account total jobs and investment involved is in favour of harmonisation along the lines suggested in the paper.' (Actually they said 'fewer that' instead of 'fewer than,' I have taken the liberty to correct the obvious grammar error.)

This is great stuff. It just shows that the idea of listening to the numerical majority is stupid. Rather, people should listen to the 'balance of economic weight', that is to the voting power of the big wallets. Or so it might seem, if we follow the Commission's concept of democracy.

I was curious if that concept might be mirrored in the fundamental values of the Social Democratic Party and the Green Party, which happen to build the government coalition in Germany right now. So I had a look at their respective websites. Here is what I found.

The Leipzig Grundsatzprogramm (general principles) of SPD, says on its page 49:

'Demokratie bezieht ihre Lebenskraft aus der Gesellschaft und ihrer politischen Kultur. Sie wird durch die Ballung von wirtschaftlicher oder Medienmacht und durch die Anhäufung von Herrschaftswissen in privater oder öffentlicher Hand bedroht. (Democracy receives its vitality from society and its political culture. It is threatened by the concentration of economical or media power, and by the accumulation of ruling knowledge in private or public hands.)'

The draft Green Party Grundsatzprogramm (general principles) says on its page 68:

'Demokratie lebt vom Wettstreit der politischen Positionen und Konzepte. Deshalb halten wir es für falsch, wenn Positionen nicht mehr offen eingeführt und erstritten, sondern allein mit den großen Interessenverbänden ausgehandelt werden. Wir wollen die Rolle der Parlamente und der Abgeordneten im politischen Willensbildungs- und Entscheidungsprozess aufwerten. (Democracy has its foundation in the competition of political positions and concepts. Therefore, we think it is wrong if positions are not introduced and fought for openly, but rather only negotiated with big interest lobby groups. We want to strengthen the role of Parliaments and of representatives in the political opinion building and deciding process.)'

Maybe the German Social Democrats and the Greens need to reconsider their principles. 'Democracy threatened by accumulation of economic power', 'wrong if only negotiated with lobby groups.' Tsk, tsk. As the Commission tells us in the above sentences, politics is not about something superficial as numerical majorities, politics is about economic majorities.

Maybe. But I prefer to think that it is the Commission who needs to reconsider its understanding of democracy. Following the big lobby groups is not going to be a popular flavour of democracy, here and now (it might have had its place in the Nineteenth Century, but not in the Twenty-first). And since the procedure will follow Article 251 of the Treaty, at some point the proposal will need a majority in the European Parliament.

And I sure hope that the Parliaments idea of democracy is somewhat different from the Commission's concept.

To strengthen this point, maybe someone could set up a website collecting the opposition to software patents in a petition to the European Parliament. Quite possibly, our side might receive several thousand votes from citizens all over Europe for such a petition against software patents. No, wait, that has happened already, hasn't it? It will be interesting to see what the European Parliament does with that petition, with over one hundred thousand signatures, now that the Parliament's point of view will actually matter.

4. Where's the beef?

Lawrence Lessig asked some time ago that Europe should consider the economic consequences before legalizing software patents (he seemed to think that software patents in Europe are illegal right now, which is actually correct, even if most people at the European Patent Office would rather ignore that fact).

Of course he is right. If Europe is going to take the drastic step to push patent inflation by adding a vast area to the patentable domain, at the least one should expect that someone would have a look at the economic consequences first.
If nothing changes by the proposal, that would seem to be unnecessary, but we have already refused to be fooled by this noisemaker. The proposal is to introduce software patents; to abolish the long-standing prohibition against software patents in Article 52 of the Convention; to make all the illegally granted software patents enforceable.

So where is the economic justification for this complete reversal of European legislation?

The Commission's main point is that a study by the Intellectual Property Institute of London, published 2000, supports software patents. The problem with that study, however, is that it is contradicting itself, as is evident even in the citations of the study in the Commission proposal.

On the one hand, the Commission tells us:

'It (the study) finds that the patentability of computer program related inventions has helped the growth of computer program related industries in the States, in particular the growth of SMEs and independent software developers into sizeable indeed major companies.'

On the other hand, the Commission says:

'Any move to strengthen IP protection in the software industry cannot claim to rest on solid economic evidence.'

Only one of the above can be true. If the patentability of computer programs is the greatest thing since the internal market for the economic success of SMEs, then why is there 'no economic evidence' for a move to stronger IP protection?

Anyway, the study the Commission presents as its strongest witness has done no factual research of its own, limiting itself to quoting from the research of other people instead. More to the point, this study has done no factual research whatsoever on the situation in Europe, which would have been necessary.

In that respect, it contrasts with the much more serious study initiated by the German Federal Ministry of Economics and Technology, which was ignored completely by the Commission in preparing the proposal. The German study actually did some fieldwork, asking people questions, trying to get raw data, none of which however would seem to be sufficient proof of any beneficial effect of software patents.

So, what is the Commission telling us about the economic justification? They tell us two things. 'Our study gave us no economic evidence for a move to stronger IP protection,' and 'We are ignoring the German study.'

Both of which are certainly no sufficient reason for the proposal.

As a dedicated opponent of software patents, it is not really my most important goal in life to find some sufficient reason where the Commission fails to show it. But I am curious about how the proposal of legalising software patents might fit in with the general direction of European Union policy in information technology matters. Which is another question the proposal conveniently ignored.

At the European Council in Lisbon in March 2000, the European Union adapted as a 'strategic goal' for the next decade 'to become the most competitive and knowledge-based economy in the world.'

One might have expected the Commission proposal to explain why a vast expansion of government-granted monopoly rights contributes to the goal of becoming 'most competitive in the world'. Patents are the exact opposite of competition, and while it might be possible to argue that their harm to competition is less serious than their merits, it is impossible to argue that patent inflation increases competition.

One might note that the European Union policy as a whole is directed at killing off monopolies, and strengthening competition, especially in the telecommunications sector, which is of strategic importance for the above goal. Quite recently, the Commission said in a Communication on 'The Impact of the E-Economy on European Enterprises - Economic Analysis and Policy Implications' that there is a need to promote open standards and competition, which is correct.

So how is the legalisation of software patents going to help promoting open standards and competition? I think that it is doing the exact opposite; that it will damage open standards and competition; that it will be a crucial factor in preventing the 'most competitive in the world' goal from happening. And if we introduce monopoly rights on software ideas all over the place, we might as well go back to monopolies in the telecommunications sector as well.

5. Me too?

Last time I checked the European Union was not a colony of the United States. Rather, we reserve the right to disagree. The European Parliament is under no obligation whatsoever to adjust European legislation to American standards. One point of European integration is exactly that: having more weight in bilateral relations.

This means that the proposal to introduce software patents in Europe needs a better reason than that Americans like them, as Lawrence Lessig has pointed out quite convincingly. 'Me too' is no reason for patent inflation; at least no sufficient reason.

There seems to be only one place where the unfortunate situation in America is given as a reason for this proposal to introduce software patents. In the FAQ, as an answer to the question why patents are good for innovation, the Commission says, among other misguided observations:

'Other countries which are successful in the information technology sector (such as the US and Japan) also grant patents for computer-implemented inventions.'

There are two points which need to be addressed here, both conveniently left out in the proposal.

One point is the hard data readily available comparing research and development in Japan, Germany and the United States. For anyone who cares to look, the Bessen/Maskin study clearly indicates that research and development in the software sector went down in the United States as a consequence of introducing software patents. Everybody knows that, but the more important point is that no such reduction was to be seen in Germany (see Figure 2 on page 9 of the paper). Having no software patents is a competitive edge for Europe.

This is much like the goofy American policy requiring export licenses from software publishers, which contributes nothing to the goal of stopping the spread of cryptography, but adds a lot of red tape for American industry, and the suspicion that the American government makes sure that Microsoft product security can easily be compromised by the CIA, hurting sales to anyone interested in keeping their data for themselves. The Americans are shooting their own foot with that policy, which is great for the European industry, since it helps the Europeans to catch up on the market.

Exactly in the same way, the Americans are shooting their own foot by transforming their software industry in law firms with small software development departments, and having everyone sue everyone else in sight over some trivial idea some rookie at the Patent Office stamped with his seal of approval. This is great for the European industry. And the last thing we need is the Commission to copy American patent policy, giving up on the competition advantage we have right now, and which is clear to anyone who cares to look at the Bessen/Maskin data.

The other question is who would pay the license fees, as a balance, European industry or American industry. This is simply a question of who has more and more license-fee generating software patents. Either the Europeans or the Americans will come out ahead.

With the current dominance of world markets enjoyed by the American software industry, it would seem at first sight that any such balance would necessarily need to come out with large numbers in the red from an European perspective. In other words, any move in the direction of patent inflation in this field means massive money transfers from Europe to America, which is definitely not in the European interest.

This is not a theoretical consideration. Look at all the cases in which software patents cause real damage to European interests right now. In most of them American patent holders are harassing European software developers. So if the bold project of the Commission to legally accept software patents in Europe sails through, we will see more of the same, on a much larger scale. We will see American patent holders harassing, threatening, and cashing in on European software developers.

Probably the European software industry would be better off if the Commission just proposed a one percent tax on all sales of European software developers in Europe, to be paid out as a lump sum to the American BSA. That way we would at least avoid the hassle and the confusion.

But even the BSA couldn't write that in their proposal draft for the Commission, could they?

6. So what?

Now, what exactly would happen if all my attacks, and those of many others, would fail to sink this proposal?

The Commission wants us to believe that we need not worry. Contrary to the situation in America, there will be no patents on business methods, because with the proposal, every 'computer-implemented invention' needs to show a 'technical contribution'.

This means that the Commission actually listened to the consultation to a certain extent. Even those few answers that supported the Commissions position drew a line at the point of allowing business methods patents.

This also means that the current proposal is much less damaging than the proposal to abolish 'computer programs' from the list of not patentable subject matter in Article 52 of the European Patent Convention was. That would have been following the American example without even pretending not to do so.

What does that magical 'technical contribution' requirement actually do? I don't know. The Commission does not know either, as they say in their FAQ:

'It would not be possible for a legal text such as a Directive to attempt to spell out in fine detail what is meant by "technical", because the very nature of the patent system is to protect what is novel, and therefore not previously known (emphasis added). In practice the courts will determine in individual cases what is or is not encompassed within the definition. However, earlier court decisions have indicated that a technical contribution may arise if there has been some improvement in the way that processes are carried out or resources used in a computer (for example an increase in the efficiency of a physical process), or if the exercise of technical skills beyond "mere" programming has been necessary to arrive at the invention.'

Now, this is real magic. How can there be any 'earlier court decisions' on a law not yet adopted? And wasn't the whole point of the exercise to stop all those nasty court decisions from confusing the issue and have a clear and predictable regulation? At least that was what the proposal pretended to be, as we have seen above.

So we have to stick with the first part of that answer. We don't know. And we can't give details. We will have to wait and see what the courts will do with that new text, once they get a chance to apply it to real cases, and start the interpretation work.

But I know one thing. For close to 30 years, Article 52 of the European Patent Convention has said that 'computer programs' are not patentable subject matter. That is about as clear as it can get. But the courts chose to ignore this; the courts chose to work around this; the courts chose to grant thousands of software idea monopolies anyway. Just look at the Software Patent Horror Gallery, to see what good that exception has done for the opponents of software patents.

So, as a matter of course, I expect the patent lobby and the courts to do the same with any new text adopted as a result of the proposal. Don't worry? With that track record? The 'technical contribution' requirement will be interpreted as being fulfilled when the software program in question is running on a computer. If you think this is a joke have a look at the Japanese regulation of software patents, which takes exactly that position (easily confirmed by looking at the German study mentioned above on page 216). In Japanese law, you can get a software patent if the software is designed to run on hardware, which doesn't seem to have much of a restricting effect.

No, wait. There will be at least three different interpretations in court decisions. Most will see the requirement fulfilled if the software is designed to run on a computer, but others will take the bold step to require that a Central Processing Unit and a display is necessary to run it; and a third theory will be that any software making use of the Internet in some way contributes technically. All of which will mean: There will be no restricting effect whatsoever, and, of course, we will see patents on business methods and patents on Internet usage methods. And everything already granted illegally will be perfectly enforceable, which alone will be enough to catch up with the American state of craziness in the field.

So, yes, Commission, we are extremely worried that your proposal will remove any restrictions; that it will break the dam and bury the European industry in a flood of American software patents; that there will be no limit whatsoever. And we are especially worried that everything already granted will be enforced.

So all those opposing software patents might have to think about some other approach. If the proposal gets adopted, software patents will be like spam. Harassing, threatening to chill and choke all research and programming activity, restricting competition and open standards, and harming Open Source more than anything else, and they will be perfectly legal. And just as the sum of damages caused by spam is rising with the number of spam messages sent, the sum of damages caused by software patents will rise with the number of software patents granted and enforced.

And as more and more projects will be taken down all over the place, destroyed by some trivial software patent, people will get mad. When the first cases enforcing software patents hit the courts, the defendants will receive ample support in public, while the plaintiffs will need some pretty professional footwork to limit the PR meltdown their lawsuits will cause. Just look at British Telecom and the perfect joke they are making of themselves by trying to enforce their Hyperlink Patent in the United States. Everybody and their dog hate them for that, and laugh about them, and despise them. I for one have to thank them for their great contribution to the cause of software patent opposition, but that doesn't change much of the PR damage.

And just as people eventually will find some way to deal with spammers, even if the law does not stop them, the overwhelming majority of opponents to software patents will find a way to deal with corporations who try to use software patents, even if the law does not stop them.

So what if the Commission proposal actually succeeds in forcing software patents down our throats? We'll see about that when it happens. Right now, I hope that all of my attacks hit the proposal, and sink it for good.
 

Posted by Karl-Friedrich Lenz at 05:50 PM | Comments (0) | TrackBack

April 19, 2003

Patent Office Backlog

Slashdot points to this article, which says that the American patent office needs 24 months on average to issue a new patent. Backlogs are large and rising.

One of the reasons to have a patent system is: People expect knowledge about technology to spread.

However, as a tool of publishing new ideas, this seems to be performing rather bad. Every new idea that reaches the general public in this way is at least two years old. Like a scientific journal that takes two years for a peer-review exercise.

That is not really effective. For example compared to the speed of blogs. Or just about any other mechanism of publishing. Which means: The long backlog and waiting time removes much of the legitimacy of the patent system.

Posted by Karl-Friedrich Lenz at 10:37 PM | TrackBack

April 06, 2003

Balance

Alan Greenspan, Chairman of the American Federal Reserve Board, asks for balance in intellectual property:

If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system--developed for a world in which physical assets predominated--for an economy in which value increasingly is embodied in ideas rather than tangible capital?

This does not tell us _where_ the right balance is. For example, we can't say if Greenspan would approve of software patents or not.

However, it is still an important point. Intellectual property is there for a economic reason. If software patents or any other part of the intellectual property system has no sound economic foundation, they need to be abolished immediately.

Link credit: Lessig Blog.

Posted by Karl-Friedrich Lenz at 10:10 AM | Comments (0) | TrackBack

April 05, 2003

Haiku Spam Filter

This company uses copyright and trademark law to build a spam filtering system. They have a patent pending for the idea.

Link credit: Trademark Blog.

Update April 5:

From a recent Slashdot discussion:

However, the part that irks me is that according to their FAQ they have patented their "system". Their system? How the hell can you patent the use of a legal mechanism? There is no technical novelty to their spam filtering mechanism, and in fact, they provide no spam filtering themselves, you just set up Spam Assassin or other programs to account appropriately for their particular headers. I've seen plenty of other header-flagging schemes for assisting spam filtering. The novelty then is claiming both copyright and trademark to the header text? Okay, this makes me not terribly fond of this company, even though it's nice and all that they are giving royalty-free "licenses" to individuals, I am not clear that they could ever successfully prosecute a patent case against anybody else who uses header-filtering of copyrighted or trademarked text of their own choosing to fight spam. Anyone have any information on case law describing patents of legal constructs? How would that differ from trying to patent a tax shelter mechanism? If you could actually do that, don't you think KPMG et. al. would have been using patent law to protect their legal constructs all along?

I agree that this idea should not be patentable. So it will be interesting to see if that patent actually gets issued. Patenting the use of trademark and copyright law might backfire: Intellectual property lawyers would get a taste of their own medicine, always having to check the patent databases before getting any work done.

Posted by Karl-Friedrich Lenz at 09:56 PM | Comments (0) | TrackBack

April 04, 2003

Acacia Patent

This article in Forbes (via Slashdot) doesn't tell us much about the merits of Acacia's claims on owning streaming content over the Internet. But the important point is: The potential defendants of these law suits are bundling their forces. That is one of the points I made in my book "Grenzen des Patentwesens" (in German). The patent holder stands alone against everyone else, so I expect more and more alliances of companies fighting against Internet patents as those get more and more out of control.

Update 27 January 2004: The European Patent Office has granted a patent to Acacia as well, see this FFII article.

Posted by Karl-Friedrich Lenz at 09:10 PM | Comments (1) | TrackBack

March 30, 2003

Japanese Trade Deficit

This article in the Japan Times says that Japan had a 119.5 billion yen deficit in licensing deals in 2002, excluding transactions within group firms.

Revenues were at 214.4 billion, while expenditures added up to 333.9 billion yen. Most of the deficit was with the U.S., at 70 billion yen.

The "Intellectual Property Basic Law" wants to change this situation.

Link credit: F*cked Gaijin.

Posted by Karl-Friedrich Lenz at 10:20 PM | Comments (0) | TrackBack

March 28, 2003

Lessig Sound Bite

Larry Lessig at the Internet Law Program, as blogged by Copyfight:

The only thing we can be sure of is: patents--bad.

Posted by Karl-Friedrich Lenz at 10:47 AM | Comments (0) | TrackBack

March 21, 2003

Patent Litigation Game

Bruce Schneier's latest Crypto-Gram discusses one of the countless software patent litigations in America.

"This case has been going on for over a year, and many people have asked me whether or not the patents are valid. But honestly, I didn't (and still don't) have the strength to read the actual patents. It's eight patents -- hundreds and hundreds of pages of dense legalese. There are over a hundred claims, some of which are so general they can apply to any authentication protocol. It took a phalanx of legal experts to figure this one out, and I am pleased to say that I was not retained -- and have no intention of being retained -- by any of them."

This is an important point. Even reading software patents with hundreds of pages takes a lot of time. So any software developer who actually wants to respect "intellectual property" is in for a huge investment.

This in turn means that most people won't bother to make that investment. Everybody knows that it's illegal to kill someone else. Everyone knows and most people respect that it's illegal to aggressively invade other countries. But how many software developers actually know all the patents?

The central point in my book on patents is based on an analysis of how software patents actually work in litigation. So this point in Schneier's article was especially interesting to me:

"And that's where the lawyers come in. Stambler isn't stupid. He accepted $400,000, plus some ongoing royalties, from Certicom. I'm sure Certicom looked at the patent and said: "This can't be valid." But Certicom's lawyers said: "Look. It'll cost you $400,000 for us to read the patent, read the wrapper, and engage in litigation. And the outcome of litigation is never without doubt." Certicom isn't stupid, either. They reasonably decided that paying was cheaper than fighting. Openwave paid the same amount, and First Data supposedly paid $4 million! (I honestly don't believe that number.)

I'm pleased that VeriSign and RSA fought, and thrilled that they won, but the game illustrates a serious problem with the current patent system: it falls to a divide-and-conquer attack. Let's say that successfully fighting a patent costs $5 million. (I'm making these numbers up, but that's not an unreasonable cost for a patent litigation.) The patent owner approaches ten companies and offers to license the patent for $1M. Since fighting costs $5M and the companies are rational, they pay up. But if the ten companies banded together and successfully fought the patent, they would each save $500K.

In the American system, when confronted with some doubtful patent, you can choose if you want to pay the patent holder or your lawyers. There is an obvious need for countermeasures.

One thing to consider would be criminal law charges (extortion) against patent holders. Getting paid off only because of the threat of large legal bills might qualify in some circumstances.

However, criminal law is the resort of last means. It would seem to be appropriate to look at other strategies first. The obvious thing coming to mind would be to join forces, like the now defunct NATO. Have everybody interested commit to defend against software patents. And then treat an attack against any one company in a "Software Patents Defense Organizations" as an attack against everybody, striking back with all means available to a large alliance.

This approach would seem to avoid the "divide-and-conquer-attack". As long as legislators don't understand that software patents need to be abolished, some kind of collective shield might become necessary.

Posted by Karl-Friedrich Lenz at 01:02 PM | Comments (1) | TrackBack

Patent War Stories

Larry Lessig asks people to mail him patent war stories:

So here’s an idea. I’d like to construct a page of views of technologists who have experience with the system. The aim will not be to evaluate the system as a whole, but instead to collect credible testimony about the burdens the system imposes. Policy makers should be evaluating whether the benefits outweigh the burdens. My aim is not to do that weighing. My aim is simply to collect stories and evidence about the burdens.

If you have experience and a view, then email me and describe both. I will collect them and verify the source, and then make the results available here. The aim is not to conduct a poll; this will not be a representative sample of anything. But it would help immensely to have a place where people could go to read what technologists say to me all the time.

He already knows of the FFII page, which seems to be a good starting point. But I hope that he can get some more impressive accounts on how the patent system abuse is affecting software development.

Posted by Karl-Friedrich Lenz at 11:28 AM | Comments (0) | TrackBack

March 14, 2003

Criticism

of the patent agreement from European employers association. They don't like the translation compromise.

There is also a new study "The possible introduction of an insurance against costs for litigation in patent cases" by CJA Consultants Ltd, European Policy Advisers, Britain and Brussels (12 March 2003) at the Commission website.

Posted by Karl-Friedrich Lenz at 09:27 PM | Comments (0) | TrackBack

March 13, 2003

Rhetoric

Those working for the inflation of intellectual monopoly rights are using colorful rhetoric means. For example words as "pirate", "stealing", "Boston strangler", "dagger in the heart of the DMCA" etc.

So how can the other side fight back? I have a few suggestions.

1. "Enemy of Freedom"

Intellectual monopoly (IM) rights like patents, copyrights, trademarks all give the owner an exclusive right to use. This means everyone else's freedom is reduced. This in turn means that those working for stronger IM are opposed to everyone else's freedom, so they are enemies of freedom.

2. "Great Mastermind of Greed"

The point of this rhetoric figure is the alliteration. This might be used as a honorary title for those individuals who are working most efficiently for the enemies of freedom. Maybe someone could sponsor a yearly "mastermind award".

Why greed? Well, of course, people who create great ideas should be rewarded. Authors, musicians, inventors should get paid. But in unlimited quantity? And with most of the profit directed to publishers? The word "greed" may be defined as "excessive or reprehensible acquisitiveness". While the opinions about "reprehensible" might differ, there sure is much excessive acquisition based on IM rights.

3. "Slave Trader"

This is the counterpunch to "pirate". "Piracy" in the original meaning of the word is "an act of robbery on the high seas". This is a serious and violent crime. Copyright or patent violations are illegal, but they are obviously much less serious than real piracy. There is a difference between a kid trading illegal files and a bank robber. So this rhetorical figure serves the purpose to fool the listener.

In the same spirit, a "slave trader" is someone who does not recognize the freedom of the human beings he has enslaved, often by acts of violence. So calling someone promoting owning ideas "slave trader" is misleading exactly in the same way as calling someone violating intellectual monopoly "pirate".

And there is an added bonus in this line of reasoning: Ownership in human beings (slavery) was legal for thousands of years. Ownership in ideas has been legal only for a couple of hundred years. Slavery has been abolished. Ownership in ideas? Not yet, but that might come, if the backlash to extreme intellectual monopoly inflation becomes strong enough.

4. "Intellectual Monopoly (IM)"

Many people are critical of the term "intellectual property". For example, Richard Stallman says that term should be avoided because it is an "unwise generalization".

But on the other hand, there are times when we want to talk about patents, copyrights, trademarks etc. at the same time and need a general term. I agree that there are large differences between patents and trademarks. But speaking of all systems at the same time doesn't necessarily imply ignoring these differences.

The other criticism of "intellectual property" is, again in Stallman's words:

"The term ``intellectual property'' carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)"

I agree with that analysis.

So I would like to suggest using "intellectual monopoly" instead.

"Monopoly" is defined as

"exclusive ownership through legal privilege, command of supply, or concerted action".

Patents, copyrights, trademarks all give exclusive ownership through a legal privilege. So using this word seems to be fair enough. And it matches nicely with the term "enemy of freedom".

5. Final word of caution

Use of the above rhetoric counterpunch means should be saved for situations where they are necessary. If someone uses colorful rhetoric like "piracy", "theft" etc. without contributing anything meaningful to the debate, countering with an occasional "enemy of freedom" or "slave trader" might be appropriate.

In most other situations, it would seem to be unfriendly to use the above weapons. And in the case of "intellectual property", with most audiences you are stuck with that term if you don't have time to explain what's wrong with it and what "IM" is supposed to mean.

Update 17.03.2003:

For example, if the "pirate" rhetoric gets upgraded to "terrorist", that might be a good time to strike back.

Posted by Karl-Friedrich Lenz at 12:37 PM | Comments (0) | TrackBack

March 07, 2003

I'll believe it

when I see it in the Official Journal. This is not the first announcement that the EU agrees on joint patent system. Basically the language issue is extremely difficult to solve.

Posted by Karl-Friedrich Lenz at 06:20 PM | TrackBack

March 06, 2003

Trash patent

Apple has received a patent on the trash icon, says this article.

Link credit: Slashdot.

Posted by Karl-Friedrich Lenz at 09:52 AM | Comments (0) | TrackBack

March 01, 2003

Ralph Nader

critical of patents in this short Wired interview.

Posted by Karl-Friedrich Lenz at 09:20 AM | Comments (0) | TrackBack

February 28, 2003

Software Patents

The Committee on Industry, External Trade, Research and Energy of the European Parliament has adopted an opinion on the proposed introduction of software patents.

The committee asks for an amendment restricting patentability:

"Exclusions from patentability

A computer-implemented invention shall not be regarded as making a technical
contribution merely because it involves the use of a computer, or other apparatus. Accordingly, inventions involving computer programs which implement business, mathematical or other methods, which inventions do not produce any technical effects beyond the manipulation and representation of information within computer-system or network, shall not be patentable."

Posted by Karl-Friedrich Lenz at 08:38 PM | Comments (0) | TrackBack

February 26, 2003

Japanese IP Basic Law

The translation of the Japanese Intellectual Property Basic Law (Law Number 122/2002), December 4th 2002 is finished now. I consolidate it in this post for further reference. The Japanese original is here. And a English translation of the commission report of July 2002 advocating the concept of Japan as "a Nation built on Intellectual Property" is here.

There is also a "Provisional Translation" on the Japanese Prime Minister's website.

Table of contents

Chapter 1 General Rules (Articles 1 to 11)
Chapter 2 Basic Measures (Articles 12 to 22)
Chapter 3 Plans for Forwarding the Creation, Protection and Use of Intellectual Property (Article 23)
Chapter 4 Commission on Intellectual Property Strategy (Articles 24 to 33)
Annex

Chapter 1 General Rules

(Purpose)

Article 1

The purpose of this law is this. In the present situation the need for aiming at enhancing Japan’s international competitive power because of changes in the national and international society and economy is growing. Therefore, the purpose is to bring to life a vibrant economy and society which has the creation of added value as its core by creating new intellectual property and making efficient use of it. To this end, regarding the creation, the protection, and the use of intellectual property basic values and the basic points for bringing them to life are defined. The obligations of the Nation, of the Prefectures and Cities, and of the universities are clarified. There are rules about plans for forwarding the creation, the protection and the use of intellectual property, as well as about a new commission on intellectual property strategy. By adopting these rules, the law has as its purpose to forward in a concentrated and planned way measures about the creation, the protection and the use of intellectual property.

(Definitions)

Article 2

“Intellectual property” means: Inventions, utility models, new plant species, designs, works and other matters resulting from human creative activity (including discoveries or explanations about natural laws or phenomena, as far as they are susceptible of industrial application), trade marks, firm names and other means that are used in commerce to distinguish goods or services, and trade secrets and other technical or trade information that is important for business activity.
(2) “Intellectual property rights” means: Patents, utility model rights, plant variety rights, design rights, copyrights, trademarks, and other rights regulated by law or rights about interests protected by law.
(3) “Universities etc.” means: Universities and high level specialists schools (…), institutions used in common by universities (…), independent agencies (…) as far as they are engaged in research, special corporations (…), as far as they have research as their purpose, and national research institutions, and those of the prefectures and cities (Citations of other laws abridged in the translation).

(Sound development of the national economy and creation of a rich culture)

Article 3

Measures on the creation, protection, and the use of intellectual property have to be forwarded based on the following principles. By training a workforce with rich creative power, by utilizing that creative power sufficiently, by providing for protecting intellectual property quickly and suitably in Japan and in foreign countries in a manner consistent with the technological revolution, and by making active use of intellectual property in the economic society, the environment for the greatest possible utilization of the worth of intellectual property should be consolidated. In doing so, a society will materialize in which the citizens can enjoy the benefits of intellectual property in a wide way. At the same time, a base for the creation of new intellectual property in the future will be established. The sound development of the economy and the creation of a rich culture by these means shall be the principles of policy.

(Strengthening and constant development of Japan's international competitive power)

Article 4

Measures on the creation, protection, and the use of intellectual property have to be forwarded based on the following principles. By providing for a smooth application of the results of creative research and development in enterprises, by encouraging the pioneering of new business fields and the revolution of management and the founding of enterprises, Japan's industry and technological power should be strengthened and its vitality regained, the regional economy should become more active, and the opportunities for employment should grow. By these means, the international competitive strength of Japan's industry should be strengthened and it should be possible to contribute to a sustainable development of Japan's industry consistent with a changing economic environment in Japan and other countries.

(Obligations at national level)

Article 5

At national level, measures on the creation, the protection, and the use of intellectual property have to be decided on in line with the principles on the creation, the protection and the use of intellectual property outlined in the previous two articles (the principles).

(Obligations at municipal level)

Article 6

Prefectures and cities have to decide on and put into practice autonomously, following the principles and in appropriate cooperation with national authorities, measures on the creation, the protection and the use of intellectual property which make use of the special properties of their region

(Obligations of universities etc.)

Article 7

(1) Keeping in mind that universities etc. contribute by their activity to the creation of intellectual property in the whole of society, they have the obligation to actively work for the education of the workforce, research and the proliferation of the results of research.
(2) Universities etc. need to put effort into the goal of securing an adequate compensation for researchers and technicians and far-reaching research facilities, so as to make the work and the working environment of researchers and technicians attractive.
(3) When deciding on measures on the creation, the protection and the use of intellectual property on a national or municipal level, measures affecting universities or high level specialist schools or inter-university institutions, those measures and their execution need to take into account the respect for the independence of researchers and other special circumstances for research in universities, high level specialist schools or inter-university institutions.

(Obligations of enterprises)

Article 8

(1) Keeping in mind the important role of intellectual property for the development of Japanese industry, enterprises need to put effort according to the principles into the following directions. For the purpose of being able to aim at raising productivity by activity of the enterprise full of vitality and at strengthening the basis of the enterprise, aim at the active use of intellectual property created by the enterprise or other enterprises or by universities etc. and managing the enterprises' intellectual property in a appropriate way.
(2) Enterprises need to put effort into the goal of making the attractiveness of the work of inventors and other people actively creating appropriate to the importance of that work. For that end, they need to put effort into securing an adequate compensation of inventors and other people actively creating.

(Strengthening of collaboration)

Article 9

Keeping in mind the aim of putting into practice effectively the creation, protection of intellectual property by aiming at mutual cooperation of the nation, the prefectures and cities, the universities etc. and enterprises, measures on a national level necessary for strengthening the collaboration between these are to be taken.

(Consideration of promotion of competition)

Article 10

When promoting measures about the protection and use of intellectual property, it is necessary to keep in mind its fair use and the interests of the public, and consideration must be given to promoting a fair and free competition.

(Legal system measures etc.)

Article 11

The government has to take the necessary legal system and fiscal measures to put into practice the policies about creation, protection and use of intellectual property.

Chapter 2 Fundamental policies

(Furthering of research and development

Article 12

Taking into account that the creation of intellectual property with a high additive value by universities etc. is the foundation for a sustained development of the Japanese economy and society and considering the plans about development of science and technology regulated in article 2 of the basic science and technology law (law number 130/1995), on a national level, measures necessary to secure the supply and to train researchers with a rich creative power, to consolidate research facilities and to make efficient use of research funds are to be taken.

(Promotion etc. of transfer of results of research)

Article 13

Keeping in mind that research results at universities etc. are useful for the development of new business areas and for the progress of industrial technology, measures on a national level are to be taken to ensure that research results of universities are managed adequately and are transferred to businesses smoothly. To that end, organizations at the universities etc. are to be set up that make use of employees with professional knowledge about intellectual property, the process of registering intellectual property and other processes have to be improved, research on markets etc. and offering of information and other necessary measures are to be taken.

(Acceleration of granting of rights)

Article 14

(1) Regarding intellectual property as inventions, plant variety rights, designs, trademarks and others where the right is granted by national registration, so as to make it possible for businesses to realize their business activity smoothly by having their rights ascertained quickly, on a national level measures are to be taken to provide for a examination system that can handle the procedures quickly and exactly, as well as other necessary measures.
(2) When taking those measures, effort has to be made to achieve the understanding and cooperation of businesses, with a view to make sure of the practical effect of those measures.

(Completeness and speeding up of litigation procedure)

Article 15

Keeping into mind that the role of administration of justice in protecting intellectual property will become more important with the development of the use of intellectual property in the economic society, on a national level the necessary measures have to be taken to aim at a even more complete and speedy litigation procedure in lawsuits regarding intellectual property and at providing a professional processing organization of courts and a rich system for processing conflicts out of court.

(Measures against violation of rights)

Article 16

(1) Regarding the violation of intellectual property in the domestic market, on a national level the necessary measures such as prosecution of crimes against intellectual property and forfeiture of offending goods are to be taken under a system of close cooperation with businesses and business alliances.
(2) When the intellectual property of companies established under the laws of Japan or of other associations or of Japanese citizens (Japanese nationals, also in the following articles) are not protected appropriately in a foreign country, Japan will aim at working together with the government of that country and international organizations and relevant associations according to the circumstances and will make use of rights laid down in relevant treaties and take other necessary measures.

(Building of international system etc.)

Article 17

Japan has to put effort into building an internationally harmonized system of intellectual property, working together with the government of each country and under cooperation with the international organizations of intellectual property and other international frameworks. Also, regarding countries or regions where the system for the protection of intellectual property is not sufficiently provided, Japan has to take the necessary legal and other measures for providing an environment where Japanese nationals can acquire and make use of intellectual property rights swiftly and reliably.

(Protection of intellectual property in new fields)

Article 18

(1) Keeping in mind that by means of quick and appropriate protection of intellectual property for important results of research and development in life sciences and other areas where the technological revolution is progressing rapidly one can expect the creation of new enterprises through vibrantly starting businesses, on a national level, based on the results of studying the appropriate protection level for rights, the necessary legal system measures and other measures have to be taken.
(2) To aim at the appropriate protection for intellectual property that takes into account accurately the new diversity in the use of intellectual property associated with the spread of the Internet and other changes in the economic and social situation, on a national level measures to think new about the content of rights and to assist enterprises in the development and use of technical protection schemes and other necessary measures have to be taken.

(Providing an environment where enterprises can make use of intellectual property efficiently and appropriately)

Article 19

(1) To enable businesses to make use of intellectual property for the creation of new enterprises and to aim at the smooth realization of these enterprises, on a national level measures to establish methods of appropriate evaluation of intellectual property, to build business directives which can help enterprises and other measures to provide an environment where enterprises can make use of intellectual property efficiently and appropriately are to be taken.
(2) When taking those measures, keeping in mind that small and medium level enterprises play an important role in keeping up and improving Japan's economic power, special consideration is to be given to the establishment of businesses by individuals and the pioneering of new enterprises by ambitious small and medium level enterprises.

(Offering information)

Article 20

On a national level the necessary measures are to be taken to analyze developments on intellectual property in Japan and abroad, prepare necessary statistical data and other documents, provide a database about intellectual property, and in this way offer information to businesses, universities etc. over the Internet and other high-speed networks.

(Promotion of Education)

Article 21

So as to realize a society in which intellectual property rights are respected by deepening the understanding and interest of citizens in intellectual property, on a national level the necessary measures are to be taken to promote education and learning about intellectual property and to spread knowledge about intellectual property by public relations activities.

(Securing a workforce etc.)

Article 22

So as to promote the creation, the protection, and the use of intellectual property, on a national level, in close cooperation with universities etc. and businesses, the necessary measures are to be taken to secure a workforce with professional knowledge of intellectual property, as well as to training and improving the level of that workforce.

Chapter Three

Plans on the promotion of the creation, the protection, and the use of intellectual property

Article 23

(1) The central commission on intellectual property has to draw up plans for the promotion of the creation, the protection, and the use of intellectual property (in the following "promotion plans") according to the provisions of this chapter.
(2) The promotion plans decide on the following items.
1. Guidelines on the measures regarding the creation, the protection, and the use of intellectual property the government has to take in a focused way.
2. Measures regarding the creation, the protection, and the use of intellectual property the government has to take in a focused and planned way.
3. Measures regarding the promotion of education in the field of intellectual property and the securing of a workforce the government has to take in a focused and planned way.
4. Other items necessary for promoting the creation, the protection, and the use of intellectual property in a focused and planned way.
(3) As a general principle, when deciding on measures in the promotion plan, a definite target and the date for its achievement are to be decided on.
(4) Whenever the central commission on intellectual property draws up a promotion plan under paragraph 1 above, that plan has to be made public immediately over the Internet and other appropriate means.
(5) The central commission on intellectual property has to research the status of achievement of the targets of paragraph 3 at appropriate times and make public the results of that research over the Internet and other appropriate means.
(6) The central commission on intellectual property has to research the circumstances surrounding intellectual property and evaluate the effectiveness of the measures on the creation, the protection and the use of intellectual property, and has to reconsider the promotion plan in light of the above, and has to change the promotion plan when necessary.
(7) The provisions of paragraph 4 are to be applied correspondingly to the changing of the promotion plan.

Chapter 4 Central commission on intellectual property

(Establishment)

Article 24

For the purpose of promoting the creation, the protection and the use of intellectual property in a focused and planned way, the central commission for intellectual property (in the following: commission) is established.

(Functions)

Article 25

The commission performs the following functions.

1. Draw up the promotion plan and promote putting it into practice.
2. Other than the functions mentioned in number one, research and discussion about important plans regarding the creation, the protection, and the use of intellectual property, and other functions regarding the putting into practice of measures and their coordination.

(Organization)

Article 26

The commission consists of the president of the central commission on intellectual property, the vice president of the central commission on intellectual property and members of the central commission on intellectual property.

(President of the central commission on intellectual property)

Article 27

(1) The function of president of the central commission on intellectual property (in the following "president") is performed by the Prime Minister.
(2) The president leads the functions of the commission, commands and supervises the staff of the commission.

(Vice president of the central commission on intellectual property)

Article 28

(1) The commission has a vice president of the central commission on intellectual property (in the following "vice president"), which function will be performed by a cabinet minister.
(2) The vice president assists the president in his work.

(Central commission on intellectual property members)

Article 29

(1) The commission has members of the central commission on intellectual property (in the following members).
(2) The following are members:
1. The president, the vice president and all other cabinet ministers.
2. Members appointed by the prime minister for their excellent knowledge about the creation, the protection, and the use of intellectual property.

(Presentation of materials and other cooperation)

Article 30

(1) When necessary for its work, the commission can ask the chief of concerned administration offices, municipal organizations and independent administrative legal persons to present materials, to state opinions, to explain or cooperate in other necessary ways.
(2) When necessary for its work, the commission can request necessary help from persons other than those mentioned in paragraph 1.

(Office work)

Article 31

Office work relating to the commission is carried out by the government secretariat. The Vice Chief Cabinet Secretary administrates this by order.

(Responsible cabinet minister)

Article 32

The responsible cabinet minister as referred to by the cabinet law (law number five of 1947) for matters relating to the commission is the Prime Minister.

(Government ordinance power)

Article 33

Matters concerning the commission that need regulation and are not decided in this law are to be decided by government ordinance.

Posted by Karl-Friedrich Lenz at 10:29 AM | Comments (2) | TrackBack

Interwoven

receives a patent on hierarchical file systems.

Via slashdot.

Posted by Karl-Friedrich Lenz at 09:53 AM | Comments (0) | TrackBack

February 24, 2003

IP Basic Law Article 33

(Government ordinance power)

Article 33

Matters concerning the commission that need regulation and are not decided in this law are to be decided by government ordinance.

Posted by Karl-Friedrich Lenz at 09:03 PM | Comments (1) | TrackBack

February 23, 2003

IP Basic Law Article 32

(Responsible cabinet minister)

Article 32

The responsible cabinet minister as referred to by the cabinet law (law number five of 1947) for matters relating to the commission is the Prime Minister.

Posted by Karl-Friedrich Lenz at 05:19 PM | Comments (0) | TrackBack

February 22, 2003

IP Basic Law Article 31

(Office work)

Article 31

Office work relating to the commission is carried out by the government secretariat. The Vice Chief Cabinet Secretary administrates this by order.

Posted by Karl-Friedrich Lenz at 08:07 PM | Comments (0) | TrackBack

February 21, 2003

IP Basic Law Article 30

(Presentation of materials and other cooperation)

Article 30

(1) When necessary for its work, the commission can ask the chief of concerned administration offices, municipal organizations and independent administrative legal persons to present materials, to state opinions, to explain or cooperate in other necessary ways.
(2) When necessary for its work, the commission can request necessary help from persons other than those mentioned in paragraph 1.

Posted by Karl-Friedrich Lenz at 08:11 PM | Comments (0) | TrackBack

February 20, 2003

IP Basic Law Article 29

(Central commission on intellectual property members)

Article 29

(1) The commission has members of the central commission on intellectual property (in the following members).
(2) The following are members:
1. The president, the vice president and all other cabinet ministers.
2. Members appointed by the prime minister for their excellent knowledge about the creation, the protection, and the use of intellectual property.

Posted by Karl-Friedrich Lenz at 08:05 PM | Comments (0) | TrackBack

EU Software Patents

Lawrence Lessig was speaking on February 17th at a meeting in Geneva to prepare a World Summit on the Information Society scheduled for December 2003. There is a report (in German) at Heise News-Ticker: Ideen für eine Weltinformationsgesellschaft.

Link credit: Simon's blawg.

Some of his points:

American IP inflation is dangerous for the free flow of information. Europe needs to sink the proposal of introducing software patents. Privacy is also a problem. The Internet could become an instrument of control and surveillance.

I agree with all of those. And I think there is a good chance now to stop the European software proposals. I was pessimistic in that regard, and the February 13th report of Arlene McCarthy of the Committee on Legal Affairs and Internal Market is bad news for those opposing software patents. But recent American positions on dumping all respect for international law and traditional allies give rise to some hope.

Introducing software patents in Europe would lead to large royalty payments from the European to the American software industry, which holds most of the patents. Somehow I doubt if under the present political climate the European parliament has American interests at the top of its agenda. I would not be surprised if they dumped the proposal just to make the point that the EU is - not yet - an American colony. We do reserve the right to disagree. One point of European integration was exactly that, acquiring the necessary weight to talk to America on an even base.

And of course, there is very vocal opposition to the introduction of software patents in Europe on its own right.

I have one section in my book "Grenzen des Patentwesens" (Limits of the Patent System) in English, titled "Sinking the Proposal for a Directive on Software Patents" (pages 167 to 182). This is one of my contributions to the fight against European software patents.

Posted by Karl-Friedrich Lenz at 11:18 AM | TrackBack

February 19, 2003

IP Basic Law Article 28

(Vice president of the central commission on intellectual property)

Article 28

(1) The commission has a vice president of the central commission on intellectual property (in the following "vice president"), which function will be performed by a cabinet minister.
(2) The vice president assists the president in his work.

Posted by Karl-Friedrich Lenz at 09:25 PM | Comments (0) | TrackBack

February 18, 2003

IP Basic Law Article 27

(President of the central commission on intellectual property)

Article 27

(1) The function of president of the central commission on intellectual property (in the following "president") is performed by the Prime Minister.
(2) The president leads the functions of the commission, commands and supervises the staff of the commission.

Posted by Karl-Friedrich Lenz at 07:13 PM | Comments (0) | TrackBack

February 17, 2003

IP Basic Law Article 26

(Organization)

Article 26

The commission consists of the president of the central commission on intellectual property, the vice president of the central commission on intellectual property and members of the central commission on intellectual property.

Posted by Karl-Friedrich Lenz at 09:10 PM | Comments (0) | TrackBack

February 16, 2003

IP Basic Law Article 25

(Functions)

Article 25

The commission performs the following functions.

1. Draw up the promotion plan and promote putting it into practice.
2. Other than the functions mentioned in number one, research and discussion about important plans regarding the creation, the protection, and the use of intellectual property, and other functions regarding the putting into practice of measures and their coordination.

Posted by Karl-Friedrich Lenz at 09:03 AM | Comments (0) | TrackBack

February 15, 2003

Abolish IP

says this paper (chapter 1, chapter 2). The authors (economists) think that contracts would be enough.

(Link via slashdot).

Update 22.02.2003: This article discusses the paper.

Update 24.02.2003: This homepage of the authors has more information.

Link credit: Legal Theory Blog.

Posted by Karl-Friedrich Lenz at 10:25 PM | Comments (0) | TrackBack

IP Basic Law Article 24

Chapter 4 Central commission on intellectual property

(Establishment)

Article 24

For the purpose of promoting the creation, the protection and the use of intellectual property in a focused and planned way, the central commission for intellectual property (in the following: commission) is established.

Posted by Karl-Friedrich Lenz at 09:54 PM | Comments (0) | TrackBack

February 14, 2003

IP Basic Law Article 23

Chapter Three

Plans on the promotion of the creation, the protection, and the use of intellectual property

Article 23

(1) The central commission on intellectual property has to draw up plans for the promotion of the creation, the protection, and the use of intellectual property (in the following "promotion plans") according to the provisions of this chapter.
(2) The promotion plans decide on the following items.
1. Guidelines on the measures regarding the creation, the protection, and the use of intellectual property the government has to take in a focussed way.
2. Measures regarding the creation, the protection, and the use of intellectual property the government has to take in a focussed and planned way.
3. Measures regarding the promotion of education in the field of intellectual property and the securing of a workforce the government has to take in a focussed and planned way.
4. Other items necessary for promoting the creation, the protection, and the use of intellectual property in a focussed and planned way.
(3) As a general principle, when deciding on measures in the promotion plan, a definite target and the date for its achievement are to be decided on.
(4) Whenever the central commission on intellectual property draws up a promotion plan under paragraph 1 above, that plan has to be made public immediately over the Internet and other appropriate means.
(5) The central commission on intellectual property has to research the status of achievement of the targets of paragraph 3 at appropriate times and make public the results of that research over the Internet and other appropriate means.
(6) The central commission on intellectual property has to research the circumstances surrounding intellectual property and evaluate the effectiveness of the measures on the creation, the protection and the use of intellectual property, and has to reconsider the promotion plan in light of the above, and has to change the promotion plan when necessary.
(7) The provisions of paragraph 4 are to be applied correspondingly to the changing of the promotion plan.

Posted by Karl-Friedrich Lenz at 08:21 PM | Comments (0) | TrackBack

February 13, 2003

Microsoft .NET patents

info here: The Register. This patent seems to give a monopoly over interfaces, in clear contradiction to the spirit of Article 6 of the 1991 computer program protection directive.

Posted by Karl-Friedrich Lenz at 08:42 PM | Comments (0) | TrackBack

IP Basic Law Article 22

(Securing a workforce etc.)

Article 22

So as to promote the creation, the protection, and the use of intellectual property, on a national level, in close cooperation with universities etc. and businesses, the necessary measures are to be taken to secure a workforce with professional knowledge of intellectual property, as well as to training and improving the level of that workforce.

Posted by Karl-Friedrich Lenz at 07:57 PM | Comments (0) | TrackBack

February 12, 2003

IP Basic Law Article 21

(Promotion of Education)

Article 21

So as to realize a society in which intellectual property rigths are respected by deepening the understanding and interest of citizens in intellectual property, on a national level the necessary measures are to be taken to promote education and learning about intellectual property and to spread knowledge about intellectual property by public relations activities.

Posted by Karl-Friedrich Lenz at 08:37 PM | Comments (0) | TrackBack

February 11, 2003

IP Basic Law Article 20

(Offering information)

Article 20

On a national level the necessary measures are to be taken to analyze developments on intellectual property in Japan and abroad, prepare necessary statistical data and other documents, provide a database about intellectual property, and in this way offer information to businesses, universities etc. over the Internet and other high-speed networks.

Posted by Karl-Friedrich Lenz at 11:42 AM | Comments (0) | TrackBack

February 10, 2003

IP Basic Law Article 19

(Providing an environment where enterprises can make use of intellectual property efficiently and appropriately)

Article 19

(1) To enable businesses to make use of intellectual property for the creation of new enterprises and to aim at the smooth realization of these enterprises, on a national level measures to establish methods of appropriate evaluation of intellectual property, to build business directives which can help enterprises and other measures to provide an environment where enterprises can make use of intellectual property efficiently and appropriately are to be taken.
(2) When taking those measures, keeping in mind that small and medium level enterprises play an important role in keeping up and improving Japan's economic power, special consideration is to be given to the establishment of businesses by individuals and the pioneering of new enterprises by ambitous small and medium level enterprises.

Posted by Karl-Friedrich Lenz at 11:01 PM | Comments (0) | TrackBack

February 08, 2003

IP Basic Law Article 17

(Building of international system etc.)

Article 17

Japan has to put effort into building an internationally harmonized system of intellectual property, working together with the government of each country and under cooperation with the international organizations of intellectual property and other international frameworks. Also, regarding countries or regions where the system for the protection of intellectual property is not sufficiently provided, Japan has to take the necessary legal and other measures for providing a environment where Japanese nationals can acquire and make use of intellectual property rights swiftly and reliably.

Posted by Karl-Friedrich Lenz at 11:40 AM | Comments (0) | TrackBack

February 07, 2003

Revolution

Joi Ito is plotting to use the Internet to pull of a revolution in Japan, bringing real democracy to the country.

There is one possible problem with that plan, however. As of today, there are 17 550 (seventeen thousand fivehundredfifty) Internet patents in Japan.

Very likely at least 30 of those cover the business idea of using the Internet to bring about democracy. Which would be very convenient for those opposing change.

Any volunteers to check those patents?

Even if that check confirms that there are only revolutionary patents but no patents on revolution, I am afraid that it will take many years for Joi Ito's plan to move anything. And even if we had a perfect Internet democracy in Japan right now, the real question would still be what to do, rather than how to do it.

Posted by Karl-Friedrich Lenz at 08:44 PM | Comments (2) | TrackBack

IP Basic Law Article 16

(Measures against violation of rights)

Article 16

(1) Regarding the violation of intellectual property in the domestic market, on a national level the necessary measures such as prosecution of crimes against intellectual property and forfeiture of offending goods are to be taken under a system of close cooperation with businesses and business alliances.
(2) When the intellectual property of companies established under the laws of Japan or of other associations or of Japanese citizens (Japanese nationals, also in the following articles) are not protected appropriately in a foreign country, Japan will aim at working together with the government of that country and international organizations and relevant associations according to the circumstances and will make use of rights laid down in relevant treaties and take other necessary measures.

Posted by Karl-Friedrich Lenz at 07:30 PM | Comments (0) | TrackBack

Acacia

patent story on CNET.com.

Again someone with a broad Internet patent and good lawyers. Meanwhile, Europe is set to introduce software patents as well.

Posted by Karl-Friedrich Lenz at 07:18 PM | Comments (0) | TrackBack

February 06, 2003

IP Basic Law Article 15

(Completeness and speeding up of litigation procedure)

Article 15

Keeping into mind that the role of administration of justice in protecting intellectual property will become more important with the development of the use of intellectual property in the economic society, on a national level the necessary measures have to be taken to aim at a even more complete and speedy litigation procedure in lawsuits regarding intellectual property and at providing a professional processing organization of courts and a rich system for processing conflicts out of court.

Posted by Karl-Friedrich Lenz at 07:01 PM | Comments (0) | TrackBack

February 05, 2003

IP Basic Law Article 14

(Acceleration of granting of rights)

Article 14

(1) Regarding intellectual property as inventions, plant variety rights, designs, trademarks and others where the right is granted by national registration, so as to make it possible for businesses to realize their business activity smoothly by having their rights ascertained quickly, on a national level measures are to be taken to provide for a examination system that can handle the procedures quickly and exactly, as well as other necessary measures.
(2) When taking those measures, effort has to be made to achieve the understanding and cooperation of businesses, with a view to make sure of the practical effect of those measures.

Posted by Karl-Friedrich Lenz at 09:42 PM | Comments (0) | TrackBack

Program and data

Freedom To Tinker discusses the program vs. data question raised on DisLEXia recently.

I agree that an object can be program and data at the same time, as in the example of a word document containing macros.

However, for example a government can be powerful and misguided at the same time. That does not mean that the idea "powerful" can not be distinguished from the idea "misguided".

So I still would like to think a simple approach is possible. If the object instructs a computer to do something, it is a program. The remaining cases are data.

In Felten's examples: Word is a program. A file without macros is data. And one with macros is both.

Simplicity is of essence. For example, the definition of e-mail in the 2002 Japanese law on spamming (Article 2 Nr. 1) is so complex and indigestible that people reading that with a clear idea about what e-mail is will leave the text completely confused.

Posted by Karl-Friedrich Lenz at 02:13 PM | Comments (0) | TrackBack

February 04, 2003

Another broad patent

Overlawyered.com points to a firm which owns patents on e-commerce and makes active use of them.

Posted by Karl-Friedrich Lenz at 11:36 PM | Comments (0) | TrackBack

IP Basic Law Article 13

(Promotion etc. of transfer of results of research)

Article 13

Keeping in mind that research results at universities etc. are useful for the development of new business areas and for the progress of industrial technology, measures on a national level are to be taken to ensure that research results of universities are managed adequately and are transferred to businesses smoothly. To that end, organizations at the universities etc. are to be set up that make use of employees with professional knowledge about intellectual property, the process of registering intellectual property and other processes have to be improved, research on markets etc. and offering of information and other necessary measures are to be taken.

Posted by Karl-Friedrich Lenz at 10:26 PM | Comments (0) | TrackBack

February 03, 2003

IP Basic Law Article 12

Chapter 2 Fundamental policies

(Furthering of research and development

Article 12

Taking into account that the creation of intellectual property with a high additive value by universities etc. is the foundation for a sustained development of the Japanese economy and society and considering the plans about development of science and technology regulated in article 2 of the basic science and technology law (law number 130/1995), on a national level, measures necessary to secure the supply and to train researchers with a rich creative power, to consolidate research facilities and to make efficient use of research funds are to be taken.

Posted by Karl-Friedrich Lenz at 09:12 PM | Comments (0) | TrackBack

February 02, 2003

IP Basic Law Article 11

(Legal system measures etc.)

Article 11

The government has to take the necessary legal system and fiscal measures to put into practice the policies about creation, protection and use of intellectual property.

Posted by Karl-Friedrich Lenz at 04:49 PM | Comments (0) | TrackBack

February 01, 2003

Broad Internet Patents

The article SBC Takes Aim at a Slew of Web Sites gives some info on recent broad Internet patents.


Posted by Karl-Friedrich Lenz at 08:57 AM | Comments (0) | TrackBack

IP Basic Law Article 10

(Consideration of promotion of competition)

Article 10

When promoting measures about the protection and use of intellectual property, it is necessary to keep in mind its fair use and the interests of the public, and consideration must be given to promoting a fair and free competition.

Posted by Karl-Friedrich Lenz at 08:29 AM | Comments (0) | TrackBack

January 31, 2003

IP Basic Law Article 9

(Strengthening of collaboration)

Article 9

Keeping in mind the aim of putting into practice effectively the creation, protection of intellectual property by aiming at mutual cooperation of the nation, the prefectures and cities, the universities etc. and enterprises, measures on a national level necessary for strengthening the collaboration between these are to be taken.

Posted by Karl-Friedrich Lenz at 08:08 AM | Comments (0) | TrackBack

January 29, 2003

IP Basic Law Article 8

(Obligations of enterprises)

Article 8

(1) Keeping in mind the important role of intellectual property for the development of Japanese industry, enterprises need to put effort according to the principles into the following directions. For the purpose of being able to aim at raising productivity by activity of the enterprise full of vitality and at strengthening the basis of the enterprise, aim at the active use of intellectual property created by the enterprise or other enterprises or by universities etc. and managing the enterprises' intellectual property in a appropriate way.
(2) Enterprises need to put effort into the goal of making the attractiveness of the work of inventors and other people actively creating appropriate to the importance of that work. For that end, they need to put effort into securing an adequate compensation of inventors and other people actively creating.

Posted by Karl-Friedrich Lenz at 09:41 PM | Comments (0) | TrackBack

January 28, 2003

IP Basic Law Article 7

(Obligations of universities etc.)

Article 7

(1) Keeping in mind that universities etc. contribute by their activity to the creation of intellectual property in the whole of society, they have the obligation to actively work for the education of the workforce, research and the proliferation of the results of research.
(2) Universities etc. need to put effort into the goal of securing an adequate compensation for researchers and technicians and far-reaching research facilities, so as to make the work and the working environment of researchers and technicians attractive.
(3) When deciding on measures on the creation, the protection and the use of intellectual property on a national or municipal level, measures affecting universities or high level specialist schools or inter-university institutions, those measures and their execution need to take into account the respect for the independence of researchers and other special circumstances for research in universities, high level specialist schools or inter-university institutions.

Posted by Karl-Friedrich Lenz at 12:04 PM | Comments (0) | TrackBack

January 26, 2003

EU Piracy rules

should be strenghtened, in the view of the European Commission.

Posted by Karl-Friedrich Lenz at 09:32 PM | Comments (0) | TrackBack

IP Basic Law Article 6

(Obligations at municipal level)

Article 6

Prefectures and cities have to decide on and put into practice autonomously, following the principles and in appropriate cooperation with national authorities, measures on the creation, the protection and the use of intellectual property which make use of the special properties of their region.

Posted by Karl-Friedrich Lenz at 11:38 AM | Comments (0) | TrackBack

January 25, 2003

IP Basic Law Article 5

(Obligations at national level)

Article 5

At national level, measures on the creation, the protection, and the use of intellectual property have to be decided on in line with the principles on the creation, the protection and the use of intellectual property outlined in the previous two articles (the principles).

Posted by Karl-Friedrich Lenz at 02:34 PM | Comments (0) | TrackBack

January 24, 2003

IP Basic Law Article 4

(Strengthening and constant development of Japan's international competitive power)

Article 4

Measures on the creation, protection, and the use of intellectual property have to be forwarded based on the following principles. By providing for a smooth application of the results of creative research and development in enterprises, by encouraging the pioneering of new business fields and the revolution of management and the founding of enterprises, Japan's industry and technological power should be strengthened and its vitality regained, the regional economy should become more active, and the opportunities for employment should grow. By these means, the international competitive strength of Japan's industry should be strengthened and it should be possible to contribute to a sustainable development of Japan's industry consistent with a changing economic environment in Japan and other countries.

Posted by Karl-Friedrich Lenz at 05:18 PM | Comments (0) | TrackBack

January 23, 2003

IP Basic Law Article 3

(Sound development of the national economy and creation of a rich culture)

Article 3

Measures on the creation, protection, and the use of intellectual property have to be forwarded based on the following principles. By training a workforce with rich creative power, by utilizing that creative power sufficiently, by providing for protecting intellectual property quickly and suitably in Japan and in foreign countries in a manner consistent with the technological revolution, and by making active use of intellectual property in the economic society, the environment for the greatest possible utilization of the worth of intellectual property should be consolidated. In doing so, a society will materialize in which the citizens can enjoy the benefits of intellectual property in a wide way. At the same time, a base for the creation of new intellectual property in the future will be established. The sound development of the economy and the creation of a rich culture by these means shall be the principles of policy.

Posted by Karl-Friedrich Lenz at 02:10 PM | Comments (0) | TrackBack

January 19, 2003

Cool and fun

Bernstein develops great patentable ideas at the pace of one a day. (found on Boing Boing)

Posted by Karl-Friedrich Lenz at 07:16 PM | Comments (0) | TrackBack

January 17, 2003

IP Basic Law Article 2

(Definitions)

Article 2

Intellectual property means: Inventions, utility models, new plant species, designs, works and other matters resulting from human creative activity (including discoveries or explanations about natural laws or phenomena, as far as they are susceptible of industrial application), trade marks, firm names and other means that are used in commerce to distinguish goods or services, and trade secrets and other technical or trade information that is important for business activity.
(2) Intellectual property rights means: Patents, utility model rights, plant variety rights, design rights, copyrights, trademarks, and other rights regulated by law or rights about interests protected by law.
(3) Universities etc. means: Universities and high level specialists schools , institutions used in common by universities , independent agencies as far as they are engaged in research, special corporations, as far as they have research as their purpose, and national research institutions,and those of the prefectures and cities (Citations of other laws abridged in the translation).

Posted by Karl-Friedrich Lenz at 07:34 PM | TrackBack

January 16, 2003

IP Basic Law Article 1

Chapter 1 General Rules

(Purpose)

Article 1

The purpose of this law is this. In the present situation the need for aiming at enhancing Japan's international competitive power because of changes in the national and international society and economy is growing. Therefore, the purpose is to bring to life a vibrant economy and society which has the creation of added value as its core by creating new intellectual property and making efficient use of it. To this end, regarding the creation, the protection, and the use of intellectual property basic values and the basic points for bringing them to life are defined. The obligations of the Nation, of the Prefectures and Cities, and of the universities are clarified. There are rules about plans for forwarding the creation, the protection and the use of intellectual property, as well as about a new commission on intellectual property strategy. By adopting these rules, the law has as its purpose to forward in a concentrated and planned way measures about the creation, the protection and the use of intellectual property.

Posted by Karl-Friedrich Lenz at 11:00 PM | Comments (0)

January 15, 2003

Table of contents

Intellectual Property Basic Law (Law Number 122/2002), December 4th 2002.

The Japanese version is here.

Table of contents

Chapter 1 General Rules (Article 1 to 11)
Chapter 2 Basic Measures (Article 12 to 22)
Chapter 3 Plans for Forwarding the Creation, Protection and Use of Intellectual Property (Article 23)
Chapter 4 Commission on Intellectual Property Strategy (Article 24 to 33)
Annex

Posted by Karl-Friedrich Lenz at 02:49 PM | Comments (0) | TrackBack

Japan IP Basic Law

The commissioner of the Japan Patent Office mentioned in his New Year's Greetings the movement for strengthening IP in Japan and the Basic Law on Intellectual Property.

I will try to do a translation of that law and post it here, one article at a time, so that people can easily comment on possible mistakes in the translation.

Posted by Karl-Friedrich Lenz at 02:43 PM | TrackBack

January 07, 2003

Software Patent Book

I have released my book "Grenzen des Patentwesens" (Limits of the patent system) as a PDF file under a Creative Commons ANN license (attribution, non-commercial, no derivative).

The book is in German. I discuss several possible answers to the recent inflation of the patent system.

Posted by Karl-Friedrich Lenz at 02:57 PM | TrackBack