British Member of the European Parliament, Labor/PSE, appointed by the Europarl Committtee for Legal Affairs and Internal Market (JURI) in 2002/03 to report on the software patentability directive. In June 2002 Arlene McCarthy published a short report which aggressively promoted the agenda of the European Patent Office (EPO). The paper charged the patent critics of having provided only invalid arguments, but failed to quote or refute any of these arguments. Meanwhile various people from the EPO and patent lobby were in contact with McCarthy and boasted that their viewpoint would prevail and the discussion would soon be over. A hearing arranged by McCarthy and the europarl webspace dedicated to the hearing both offered minimal room for critical views. Arlene McCarthy's draft report of 2003/02/19, her explanatory note of 2003/05/03 and her refusal to accept any amendments which limit patentability or patent enforcability in any way show complete dedication to the interests of patent owners. While staying away from all informed discussions and conferences on software patent questions, McCarthy has actively reaching out to the media in order to present herself as a victim of a "dishonest and destructive misinformation campaign" who is sincerely trying to limit patentability. McCarthy has been serving the recording industry and various projects of the Commission's Directorate for the Internal Market (Bolkestein) with equal fervor. McCarthy's political business model appears to consist in (1) aggressively and unconditionally serving of the Commission and big business (2) obtaining favorabl treatment by Commission and Big Business for her electoral region / constituency.
Janelly Fourtou, member of the European Parliament, French Conservative, has actively promoted software and business method patents in Europe, while pretending that she was "only restating the current law". Fourtou in particular used every opportunity to push for legalisation of program claims (e.g. "a program, characterised by that upon loading into memory some computing process is executed"), which the European Commission had suggested not to allow. Jean-René Fourtou, husband of Janelly, former top manager of Aventis (pharma), is currently the CEO of Vivendi Universal. Vivendi is involved in cooperation negotiations with Microsoft. In 2002/12 J-R became the head of the International Chamber of Commerce (ICC), an organisation with a very active patent arm (IP Commission) which is lobbying for expansion of the patent system worldwide. In 2003, Fourtou became the rapporteur of a new IP enforcement directive, which, if enacted according to Fourtou's proposal, may allow the Fourtou family to earn many thousands of EUR by suing people, either on the grounds of patents or copyright. This directive proposal is once again based on documents from BSA and once again claims to be "only harmonising the status quo". Fourtou finds the proposed measures still not draconian enough.
Joachim Wuermeling, doctor of law, member of the European Parliament (MEP) for Bavaria's Christian Social Union (CSU), shadow rapporteur of the European People's Party (EPP) on the software patent directive, opposed everyting that could somehow limit patentability (e.g. interoperability privilege) and advocated everything that extends it beyond the European Commission's wishes (e.g. program claims). Most EPP colleagues tend to blindly follow their shadow rapporteur. Many critics have in vain sought dialogue with Wuermeling. Wuermeling has however actively contacted the press in order to present himself as an opponent of "patents on pure software and business methods" and to ascribe contrary impressions of the public to "irrational fears of the opensource lobby". Wuermeling may believe what he says. In the JURI discussions of May 2003, Wuermeling tabled a pseudo-restrictive amendment (recital 13d), according to which a patent claim is limited to a specific product an may not encompass underlying algorithms. Some corporate patent lawyers from Wuermeling's clientele have been laughing about Wuermeling's lack of basic knowledge about patent law. Wuermeling accuses the European Parliament of having bowed to these "irrational fears" in September 2003 and hails the Council decision of May 2004 as a "positive signal for innovation in Europe".
Als Mitglied des Industrie- und Rechtsausschusses hat Angelika Niebler sich für die Einführung von Programmansprüchen stark gemacht und konsequent gegen alle Änderngsanträge argumentiert und gestimmt, die zu einer Begrenzung der Patentierbarkeit hätten führen können. Sie erwies sich als rechte Hand ihres Kollegen Joachim Wuermeling bei der durchsetzung grenzenloser Patentierbarkeit im Sinne der Forderungen der Patentanwälte von BDI und Bitkom.
Malcolm Harbour, Member of the European Parliament, UK Conservative, has been an active and forceful promoter of software and business method patents in Europe, all while pretending that he was "only closing loopholes in the current law so as to avoid US-style broad patentability" and that claims to the contrary came from "misguided lobbyists in the European Parliament". Harbour vigorously promoted program claims and opposed all amendment proposals, including those approved in CULT and ITRE, which put any limits on what can be patented. Patent lobbyists have great confidence in "Malcolm". Some write letters to MEPs telling them to look out for Harbour's amendment proposals and to support them as soon as they come out. Harbour, until recently an automobile industry manager at Rover, speaks in a very self-confident manner which gives many of his listeners, including MEPs from other countries and other parties, the impression that he is in power and they can rely on him and follow him.
Willi Rothley, patent expert of the german social democratic group in the European Parliament, vice president of the Legal Affairs Commission, is critical of EU lawmaking and instead believes very much in the self-regulatory capability of the patent judiciary. In this sense, he gave a speech in the Legal Affairs Committee (JURI) on 2003-06-16 where he called JURI a "sausage machine", which produces ever-new superfluous laws just to keep turning. Rothley can be expected to show an attitude of disdain for parliamentary patent lawmaking in quite blunt ways. Faithful to this attitude, Rothley voted against the proposed directive. Whether or not software should be patentable is a secondary consideration for Rothley, but in case of doubt he will usually follow the current patent jurisdiction, including that of the European Patent Office, and look with suspicion at any attempts by politicians or pressure groups to set rules in one way or other.
Internal Market Commissioner of the European Commission since 2000, leader of dutch right-wing liberal party VVD, known mainly by interventions in favor of the world's second largest pharmaceutical company, of whose supervisory board he is a member, and by various policies in favor of big business. Ever since he took office, Bolkestein firmly committed himself to the agenda for legalisation of software patents in Europe and pushed this agenda through an unwilling European Commission. Bolkestein saw himself forced to pay lipservice to the goals of his opponents and sell his directive as a means to achieve those goals. When it became apparent that this strategy did not work, Bolkestein threatened the Parliament with removal of its competence of decision. The Parliament was neither deceived nor intimidated. A month later, Bolkestein's directorate lobbied the national ministers to ignore the Parliament's will and drive the directive project against the wall. When asked for justification, officials of the directorate often point to "the Commissioner" who allegedly is insisting on this.
John Mogg has been Director General of Internal Market under commisionner Bolkestein and his predecessors since 1993, i.e. throughout the time of preparation of the Software Patentability Directive. He took particular interest in the software patentability debate and appears to have been an ardent believer in dogmas such as "intellectual property is the key to innovation, the more property the more innovation".
Chief drafter of the European Community software patentability directive proposal, born 194x, previously an examiner and administration official at the UKPO, involved in TRIPS negotiation for the UKPO, came to the European Commission on secondment from the UKPO in 2000/09, succeded Berhard Müller in his post as a chief drafter in 2001/03.
Bernhard Müller worked in the European Commission's Industrial Property Unit and was in charge of the software patent directive proposal drafting and consultation activities for several years until March 2001, then moved to the European Trademark Office in Alicante. Müller conducted "representative surveys" among several dozen patent lawyers in order to conclude that patents on software and business methods as granted by the European Patent Office (EPO) are needed. Until summer 2000, Müller advocated a "harmonisation" of European patentability rules with those of US and Japan. Later, during the Consultation of late 2000 which he conducted, Müller presented the same contents with a more cautious packaging, claiming to be aiming at a "restrictive harmonisation of the status quo". In early 2001 Müller obtained support from governmental officials for a position paper which calls for codification of EPO practise and dismisses the 91% opposition to software patents expressed in the consultation as irrelevant.
Paul Schwander, French citizen, Alsatian, born 195x, worked as a liaison officer of the EPO in Brussels during the years from the Greenpaper through the Consulation. He was in charge of the IPR Helpdesk project at the Commission's General Directorate for Enterprises and managed for a study on SMEs and software patents in the name of DG Enterprise. Both IPR-Helpdesk and the DG Enterprise study, although implicitely lending legitimacy to software patent practise of the EPO, showed a slightly more critical spirit than most of what emanated from the EPO and DG Internal Market at the time. In 2001 Schwander left the Commission. In early 2002 he was working at the EPO in The Hague.
Patent lawyer, software patentability guru, patent department head of IBM in Germany and Europe, working in Stuttgart, active promoter of software patents, responsible for pushing many landmark cases through the EPO and the German courts. Ghostwriter of various patent papers of German and European trade associations. Positions and style well known from public discussions. Hardline advocate of software patentability and very much in love with certain dogmatic fallacies which he successfully used to win over the (already very inclined) EPO and BGH in a series of decisive battles. Do not expect Teufel to understand the viewpoint of opensource programmers or to come up with solutions to non-juridical problems. Expect him to stick to EPO fallacies as steadfastly as anyone. These fallacies constitute his success experience before the lawcourts.
PA Jürgen Betten, a Munich-based patent attorney, chairman of several software patent work groups of patent lawyer associations, rapporteur to AIPPI, close collaborator of Prof. Straus and friends from MPI, AIPPI lobbyist to the European Commission, passionate software patentability advocate, author of expert opinions ordered by the EPO, attorney in EPO procedings that brought about landmark decisions, has particularly many Japanese clients.
A Munich-based patent attorney specialising on software, process control, telecommunications and the like, vociferous supporter of unlimited patentability. Horns is the main author of a German government-ordered study on the subject. He argues that Art 52 EPC is ill-defined and practically meaningless: not meant to limit patentability but only to limit claim wording: the invention is what is written in the claims: as long as the claims describe an engergy-consuming process, the invention is technical. Horns however feels that something should be done to accomodate open source software: source code should be treated like a scientific publication: not authors but users should bear the risk of patent infringement. Horns proposes this in various publications, including his ipjur.com website, an ambitious collection of immaterial property related documentation.
A German/European patent lawyer who often writes articles and participates in mailing list discussions, trying to convince software professionals that patents are good for them and that Art 52 EPC was never meant to exclude software concepts from patentability. Pfeiffer believes that software is, like rubber or iron, just another means of embodying an "invention", and most software ideas are inventions according to Art 52 EPC. Which is why he likes to speak about "software-implemented inventions".
Patent Attorney Dr. Dipl-Inform. Harald Springorum is one of the most vigorous promoters of software patentability in Germany. Born in the 50s, he studied computer science and patent law. At the time, computing and patents were two entirely divorced subjects, andSpringorum seems to be one of those patent attorneys who devoted much of their life to bringing the two together. His endeavor may even be fuelled by some idealism or remnants thereof. Springorum has been following the FFII on its footsteps since 1999, often warning people who have contacted us about how unworthy of cooperation we are. He managed to be appointed by the Gesellschaft für Informatik (GI, German Computing Society) as a ghostwriter of their opinion on patent policy which they submitted to the EU and to advocate unlimited patentability in this paper in a way which goes even beyond what the EPO is willing to accept. Moreover he has managed to speak on behalf of the German Chamber of Patent Attorneys at internal consultations of the Ministery of Justice, although his position is not particularly representative of patent attorneys. Springorum's positions carry a certain individual hallmark that makes them easy to recognise even when he acts as a ghostwriter.
Head of the department at the German Patent Office that started to grow from near zero to several thousand applications per year when the German courts began emulating the EPO in allowing software patents. Tauchert supported this trend by articles in various journals which argue in the same direction. In his interpretation, only source code is 'as such' while object code and algorithms are 'not as such'. His view has received great attention due to his position, and since Mr. Tauchert usually does not shun the efforts needed to found it on learned reasoning, he can be characterised as the "chief ideologue for technicity questions at the German Patent Office".
As a young scholar in the 70s, Gert Kolle quickly became the leading german theoretician on the limits of patentability with respect to computer programs. Kolle wrote his doctoral thesis at the Max-Planck Institute and Patent Law on this subject and published several deep-searching articles in GRUR from the early 70s to the early 80s. These articles confirmed and refined the view of the courts that there is no room for patenting computer programs if the notion of technical invention is taken seriously. Kolle's works wor often cited by German courts as a foundation for their refusal to grant software patents. Later Kolle became an official at the European Patent Office. Currently he is their head of diplomacy, and he occasionally gives talks where he explains and justifies the current software patenting policy of the EPO.
A french informaticist and economist, author of a comprehensive study on the problem of software patentability and of a book on free software. Argues against software patents from an economic and legal point of view, for the latter relying much on Vivant. His study, made in the name of the Conseil des Mines, is the only one that proposes and weighs alternative approaches to the codification of EPO practise, including a sui generis software law approach.descr: french informaticist and economist, author of a comprehensive study on the problem of software patentability and of a book on free software. Argues against software patents from an economic and legal point of view, for the latter relying much on Vivant. His study, made in the name of the Conseil des Mines, is the only one that proposes and weighs alternative approaches to the codification of EPO practise, including a sui generis software law approach.
A professor of mathematics, specialising in operations research, at Tokyo University. Wrote a very readable book about his experience with the Karmarkar patent in which he points out the inconsistencies and harmful effects of patenting math and software. Has tried to resist software patentability in Japan by filing a lawsuit against the Karmarkar patent. Although, after spending an equivalent of 1 mn usd, he finally won the lawsuit, he did not achieve his aim of making japanese courts rethink their drive to patent software and mathematics against the letter and spirit of the Japanese law. In recent years, Konno has himself been in the role of struggling to patent many business methods in order to preempt US companies. This made part of the japanese press erroneously hype him as a promoter of business method patents in Japan. In 2002, Konno published another japanese book, titled "Patents for just anything? Where is the patent business heading?"
Donald Knuth, pioneer and cult figure of informatics (computer science), author of some definitive monumental classics such as "The Art of Programming", finds that software patents are built on some basic misunderstandings, similar to the misunderstandings of certain provincial american legislators in the 19th century or the medieval catholic church. Computer programs are as abstract as any algorithm can be, Knuth says.
a professor at Berlin Technical University specialising in informatics related law. Co-authored a government-ordered study on software patentability. Supports the policy of the European Patent Office (EPO) but advocates that publication of software source code should not be considered an infringement.
Managing Director of a patent movement think tank in Munich which derives its reputation mainly from the name of poor old Max Planck. Promoter of gene and software patents, firm believer in the unconditional beneficiality and inevitably growing importance of "intellectual property in the knowledge economy", teacher of numerous equally firm-believing disciples, drafter of guiding papers and resolutions for lobby organisations such as AIPPI as well as expert opinions for patent offices and governments, partner in a study on software patentability ordered by the German government -- and screwed by Straus and his disciples, who refused to subject their holy belief system to such profane an endeavor as the government had requested, namely an economic analysis of law.
patent attorney and patent law scholar at the MPI, together with Nack and Straus, argues that "new technologies" (usually citing some very impressive ultra-advanced examples) are unprotected without software patents, that patents should be available for anything that is at the forefront of R&D, that the constitutional right to private property extends to such things, and especially that art 27 TRIPS requires the deletion of the computer programs exclusion from art 52 EPC, no matter how that exclusion is interpreted. This is also called the "autonomous interpretation of TRIPS", a theory which is tied to Schiuma's name.
Prof. Dr. Jan Busche, Inhaber des Lehrstuhls für Bürgerliches Recht und Gewerblichen Rechtsschutz der Heinrich-Heine-Universität Düsseldorf, Autor zahlreicher Artikel in den Fachzeitschriften der Patentjuristenzunft und Redner auf Patentanwaltskongressen. Busches Artikel und Reden schildern und die Entwicklung der Rechtsprechung bezüglich Softwarepatenten und versuchen sie zu legitimieren, obwohl die Analyse manchmal durchaus Widersprüche offenlegt. Über solche Widersprüche hilft Busche seinen Lesern dann meist durch schlichte wertende Adjektive hinweg.
Ralph Nack, a young scholar at the MPI, student of Straus. Ardent supporter of unlimited patentability, in particular of patents for anything that runs on a computer and can be said to "stand in a tradition of engineering". This, according to Nack, includes algorithms that allow a computing task to be solved more efficiently and that are also sometimes said to stand in a tradition of purely mental activity. Nack has written a doctorate thesis, numerous GRUR articles and some AIPPI reports and participated in a government-ordered study on this subject. Nack insists that text must also be directly patentable because the intellectual achievement and not the form is important. He also insists that patentability can neither be limited by explicit exclusions as those in Art 52 EPC nor by a theory of "technical invention" as has been built by german courts in the 60/70s. Instead anything that stands in an "engineering tradition" should be patentable, and it is up to the courts to identify and follow the path of this tradition and shape it according to a legal intuition which is not open to questioning by outsiders. Some have remarked that Nack sees law as a kind of Disk World. On the other hand Nack does not agree with the widespread patent lawyer view that the invention is what is claimed and that Art 52 EPC can be dodged by writing appropriate claims. Instead, Nack agrees with us that "invention" = "technical contribution" = "the novel core of the teaching, which must be technical".
one of the judges at the EPO's Technical Board of Appeal who brought about the landslide decisions of 1998, also wrote an article that explains the thinking behind those decisions and tries to redefine the concept of "technical invention" as "practical and repeatable problem solution".
Mr. Clelland is a judge at the Technical Board of Appeal who participated in the framing of the decisions of 1998 which authorised computer program claims. Clelland occasionally speaks at conferences in order to explain (and justify) the current practise of the EPO.
Presiding Judge at the patent senate of the Bundesgerichtshof (BGH, Federal Court), lawyer by education, later became known as software patentability theoretician, seeking to bring BGH closer to the EPO's line of making software patentable, but showing a certain uneasiness about the consequences, warning that only the technical (implementational) aspects should be patented and not the concepts and functionalities. In november 2000, Melullis expressed himself publicly against the plans to remove the patentability exception. In 2001 Melullis became the presiding judge of the BGH patent senate. In 2002, after public exchanges of views with Swen Kiesewetter-Köbinger, Reimar König and other critical patent law scholars, Melullis published a series of articles and memorandums which criticise the EPO's approach and the European Commission's directive proposal for deviating from what is permissible under Art 52 EPC and sticking to inconclusive legalistic reasoning instead of attempting a fair assessment of the interests at stake.
Scharen is one of the BGH judges who followed the EPO's lead in making software de facto patentable in Germany. He took part on behalf of the BGH in talks about the software patentability directive proposal held by the patent-friendly officials in the Ministery of Justice in 2002. In selecting discussion partners, they gave Scharen preference over other judges who are known to view things more critically.
Presiding judge at the 20th senate of the German Federal Patent Court (Bundespatentgericht), former Siemens employee, author of many articles in law journals advocate patentability of software and business methods. Praised by patent lawyers and patent administrators as an opinion leader. Anders gladly accepted the praise by labelling himself as "progressive" and his colleagues from the 17th senate as "conservative" in a speech at a public patent policy discussion meeting in november 2000. Anders may have he reached his preliminary climax of progressiveness when his senate officially declared business methods to be patentable in Germany through the Automatical Sales System (Automatische Absatzsteuerung) decision of 1999, a decision that scared even the patent lawyers from the EPO and the European Commission, who prefer not to put things so clearly.
president of the European Patent Office (EPO) since the mid-nineties, former FDP (liberal party) secretary of state in the BMJ (ministery of justice), active promoter of patentability expansion and of international unification of the patent system.
A key player in the drive for software patentability at the UKPO and the European Commission, entrusted by the British government in late 2000 to conduct a "consultation" and formulate policies in the name of the government.
Allen öffentlichen Äußerungen von 1999 bis 2002 zufolge scheint die Bundesministerin der Justiz nicht nur fest an die "Belohnungstheorie" und die a priori segensreichen Wirkungen des Patentwesens zu glauben, sondern sich auch durch eine besonders patentfreundliche Politik profilieren zu wollen. Bei Gesprächen in kleinerem Kreise zeigte sich, dass die Ministerin Schwierigkeiten hat, sich eine Welt vorzustellen, in der nicht jede kreative Idee einzeln vom Staat mit einem Monopol belohnt wird. Auch in der Frage der Genpatente macht sich die Ministerin, trotz gelegentlicher Skrupel hinsichtlich der Fragen der ethischen Vertretbarkeit von Genmanipulationen, vehement für eine weitgehende Patentierbarkeit stark und scheut dabei auch nicht Dissonanzen innerhalb der Koalition. Sie scheint generell fast blind dem Rat des Münchener Patentpapstes Prof. Straus und der Führung des Deutschen Patentamtes zu vertrauen. Auch hinsichtlich der Organisations- und Rechenregeln (Software) verfolgte Däubler-Gmelin langezeit eine patentfreudige Linie, aber nach einigen harten Diskussionen konnte sie sich im November 2000 dazu durchringen, energisch für eine Vertagung der geplanten Änderung des EPÜ einzutreten. Im Frühjahr 2001 äußerte Däubler-Gmelin für die Presse "vehemente Kritik" daran, dass die EU-Kommission "Programme als solche" patentierbar machen wolle. Unter "Programm als solches" versteht D.G. jedoch nur den urheberrechtlich geschützten Ausdruck, dessen Patentierung ohnehin von niemandem angestrebt wird. Hinter den Kulissen arbeiteten Däubler-Gmelins Ministerialbeamte weiter auf eine grenzenlose Patentierbarkeit hin. In geheimen Stellungnahmen (z.B. der Antwort der Bundesregierung auf die Sondierung von 2000/10 sowie Redebeiträgen auf Sitzungen) ermutigten die BMJ-Patentreferenten alle Brüsseler Initiativen in diese Richtung. In internen Papieren der EU-Kommission wird die Bundesregierung zusammen mit der Britischen Regierung zu den Proponenten einer möglichst unbegrenzten Patentierbarkeit gezählt. Auf Sitzungen der Arbeitsgruppe für Geistiges Eigentum und Patente des Europäischen Rates setzten sie sich mehrfach dafür ein, über den Vorschlag der Europäischen Kommission hinaus auch unmittelbare Patentansprüche auf "Computerprogrammprodukte" und andere Informationsgegenstände zuzulassen. Ein offener Brief von MdB Tauss an Frau Däubler-Gmelin, der hier Gegensteuerung verlangte, blieb unbeantwortet. Überredungsversuche des Virtuellen Ortsvereins der SPD prallten auch hart an Frau Däubler-Gmelin ab.
Während ihrer ersten Amtszeit 1998-2002 brachte die junge SPD-Forschungsministerin einen Gesetzesentwurf durch den Bundestag, der die Hochschullehrern zum Patentieren verpflichtet. In zahlreichen Reden der Ministerin taucht das Wort "Patente" in rosaroter Färbung auf. Das Patentsystem ist für Frau Bulmahn offensichtlich ein Hoffnungsträger. Es könnte erlauben, die kostspielige und sperrige öffentliche Forschung abzuschütteln (oder wenigstens durchzuschütteln) und den Staatshaushalt zu entlasten. Die Entwürfe dazu werden Bulmahn von den wohletablierten Patentfunktionären ihres Ministeriums auf den Tisch gelegt, aber die Ministerin legt bei ihrer Abarbeitung eine auffällig euphorische Haltung an den Tag.
Der "Genosse der Bosse" hat bekanntlich ein besonders offenes Ohr für die Einflüsterungen hoher Wirtschatsfunktionäre und insbesondere eine anhaltende Neigung, sich an Seite von Microsoft-Führungskadern öffentlich zu zeigen und stolz auf Partnerschaften mit MS zu sein. Seine Herkunft aus dem Anwaltsberuf, seine Orientierung an anglo-amerikanischen Vorbildern (bei relativer Distanz zu Frankreich) könnte für Software-Urheber und -anwender ebenfalls Anlass zu Sorge sein: in Frankreich fielen die Entscheidungen gegen Softwarepatente auf der Ebene des Premierministers. Bislang hat sich Schröder zum Thema Softwarepatente, soweit bekannt, nicht geäußert, aber sein Verhalten im Zusammenhang mit der Kopierschutzrichtlinie lässt wenig Verständnis für informationelle Infrastrukturen erwarten.
MdB [http://de.wikipedia.org/wiki/Jerzy_Montag Jerzy Montag] (* 13. Februar 1947 in Kattowitz, Polen) ist seit 1975 [http://www.faktuell.de/Hintergrund/Background281.shtml Rechtsanwalt] und *Fachanwalt für Strafrecht* in München, rechtspolitischer Sprecher der Grünen, Vertreter im Rechtsausschuss des Bundestages, Europarecht, stellv. in Angelegenheiten der Europäischen Union.