Analyses en Opinies Achter de Beslissing van het Parlement

Het concurrentievermogen van de Europese ondernemingen in de context van de mondialisering - bevordering van het concurrentievermogen

Opinion signed by heads of regional governments all over Europe cautions that the patent system is not universally applicable and in particular should not be extended to software.

Study by Dirk W.F. Verkade, professor of IP law, commissioned by Dutch Ministery of Economic Affairs, published as a book with ISBN 90-5409-267-X. The book's main thrust is that extension of patentability to software is very dangerous and the power copyright in the software business should not be underestimated.

• Granting of software patents started in the US without oversight from the legislative branch (just like in Europe)
• Doubts about ability US Patent Office to handle software patent related decisions, and whether it has enough knowledge and prior art information available
• Software market is different from traditional industries: small or no market in "components", most people write programs from scratch, no consultation of patent literature, high chances of infringement
• Innovation in software development occurs faster than in other industries, patents often granted after the technology has become obsolete.
• Software patents may cause the software industry to cease being a creative cottage industry, restricting it to large companies that cross-license.

Study on the desirability of software patents ordered by the Directorate General Enterprises of the European Commission, performed by UK researchers among SMEs, large enterprises and research institutions.

• None of the examined groups makes a lot of use of patents to protect their (software) investments.
• SMEs think they will not have a chance when protecting patents in front of a court due to a lack of money.
• Given the short life span of computer programs, SMEs think they can better spend their time on the development of new programs, than on obtaining patents.
• Large companies patent more than small companies.
• "SMEs consider the creation and implementation of undesirable laws as one of their primary concerns."
• "There is a general consensus that the patentability of software will probably pose a growing a concern for SMEs."

Ordered by DG Internal Market from a London-based think-tank of patent lawyers who are well known for their advocacy of software patents. Apparently in reaction to the Eurolinux Petition, the initial lawyer study was renamed to become an "economic impact study" and an economist was ordered to write an economics chapter, which however did not reach the conclusions desired by the Commission. The study was therefore locked away for 6 months until it became the basis of a "consultation exercise".

After an unexepected decision of the national governments to refrain from plans to change Art 52 of the European Patent Convention (EPC), the Commission announced another "consultation exercise". Previous consultations had involved only the peer group of the Industrial Property Unit, i.e. about 40 corporate patent lawyers, and asked only questions that were geared to this peer group. The new consultation was designed in the same way, but, due to the higher degree of public attention that the process had meanwhile reached, it received almost 1500 responses from unexpected quarters.

Percentage of consultation participants who were against software patents:

Individuals	98.5%
SMEs	95%
Large Enterprises	81%
Associations	45%
Users	99,6%
Students	99,5%
Academics	98,0%
Software Developers	95,8%
Patent Professionals	33%
Governments	22%

It appears from this that the governmental patent administrators are even more strongly biased in favor of the EPO practise than the large enterprises and patent lawyers. This is no wonder because the EPO practise was introduced by these people, who represent their governments on the EPO's Administrative Council and in the EU Council's Patent Working Party.

The Commission concluded from the statements of a few associations such as EICTA and UNICE, whose patent policy is dominated by patent lawyers of large corporations, that an "economic majority" was in favor of software patents. However 2/3 of the employment and taxes in the software sector come from SMEs, very few of whom have any interest in patenting.

zie ook The "Economic Majority" in the Software Patent Debate

Survey among several hundred companies by Fraunhofer Innovation Research Institute and Max-Planck Institute for Intellectual Property, ordered by patent department of German Ministry of Economics, all with heavy pro-patent bias, yet yielding the following results:

• Patents are the least used way and least significant means to protect investments in software development
• Development time is very short and innovation occurs extremely rapidly in the software field compared to other fields
• More incremental development in software branch than in most other industries
• Rapid innovation and effective development process even more important in software than in other fields, so obstacles to conducting development work are even more serious here
• Interoperability is extremely important
• R&D intensity has no influence on patenting behaviour
• Basic rule as in other branches holds: bigger companies obtain more patents
• "The theory that patents facilitate market access, above all for young companies, could not be confirmed."
• "The strategic benefit of patents in international competition is obvious, but concentrated on very few large companies."

Report of the Dutch Ministry of Economic Affairs of 2001

• "A partial unplanned effect of more conscious handling of the IP and the patenting strategy of companies is the arising of the problem of the `anti-commons'. Parties keep each other prisoner in a patent minefield. [$ldots{}$] Mainly the (high-tech) SMEs suffer from this strategic patenting."
• "Besides, patents are only part of the total knowledge strategy of companies. For most companies patenting is less important than secrecy and technological lead time."
• "Innovations of SMEs are relatively more encumbered by existing patent portfolios. They also experience more obstructions to patent things themselves."
• "Given the differences between sectors and the differences in company sizes, a differentiated patent system is an attractive option from an innovation point of view."

Study by the Dutch Ministry of Economic Affairs.

• "The importance of the IP-regime as far as innovation is concerned differs per sector. In the biotech and pharmaceuticals patents have an essential role given the long time to earn back investments. In the software sector developments are so quick that patents are used less to earn back investments."
• "Further, one should look at the innovation obstructions stemming from the trend of patenting enabling technologies (e.g.software) and broadly applicable business methods."

• Study ordered by the European Parliament's Directorate General for Research
• General problems with patent system as a whole
• Problem of "trivial patents" can not be solved by improving examination
• Software patents have caused a lot of problems in the US (both economical and administrative)
• Requirement of "technical contribution" is too vague in Commission proposal and can easily be circumvented, may even not be relevant by Commission's own admission (in that it cannot prevent all business methods from being patented)

German Monopoly Commission (competition watch organ associated with the ministry of economics) raises concerns about the recent practise of the patent offices and courts of allowing software patents, criticises this practise as being illegal and harmful to innovation and competition.

A report of the French State Commission on Economic Planning published on 2002/10/17 gives figures about the software industry in France (270000 employees, 31,6 bn eur turnover in 1999), sees France's software economy handicapped by proprietary standards and patent dangers and recommends that algorithms and business methods should not be patentable, formats and standards should be exempted and patents for technical inventions that use software should be limited in duration to 3-5 years.

Study ordered by European Commission's DG Enterprise

• Patents cause a lot of problems in the Telecom sector
• Patents are mainly used strategically there (block competitors, make sure you are not blocked by a competitor), not to earn back investments

ESC is main consultative organ of the EU, the opinion was approved by plenary vote

• Commission text allows patents on software executed by a computer
• Commission text simply codifies legally questionable EPO practice
• Commission text does not prevent patents on business (or on any other) methods
• Commission text does not preserve interoperability, confuses matters further instead
• Doubts about intention of Commission, which talks about several irrelevant things (such as piracy) in its introduction
• No effective economic analysis that shows benefits for SMEs
• "It is hardly plausible to have us believe that the directive would only be a sort of reversible three-year experiment, at the end of which an assessment would be made"

• "Technical" means "application of natural forces to control physical effects beyond the digital representation of information" (Artikel 2)
• Data processing is not a field of technology (Artikel 3)

• Publication can never be an infringement (Artikel 5)
• Interoperability can never constitute patent infringement (Artikel 6a)

• Software patents have in the US resulted in a transfer of ressources from R&D to patenting activities.
• More patents meant less innovation even within the companies that patented most.
• Most software patents are owned by large hardware companies and obtained for strategic purposes rather than for preventing imitation of products.
• Software patents hinder instead of encouraging innovation in fields where most innovation is incremental, such as in software development

The US Federal Trade Commission (FTC) conducted hearings among software companies which showed continued general animosity of the US software industry against software patents. In previous hearings in 1994, large companies such as Adobe, Oracle, Autodesk had expressed strong opposition against the patentability of software. This time, Robert Barr, vice president and head of intellectual property at Cisco Inc, a leader in Internet technology whom many view as a model of modern innovation managment, said:

The final report of the FTC, published in October 2003, comes to the conclusion that the patent system stimulates competition and productivity in some fields (pharma is cited as an example), whereas it tends to harm both in others, especially where software and business methods are concerned. The report expresses doubts as to the wisdom of past court decisions to admit patentability in these areas and proposes a series of measures for repairing some of the damage. The positons expressed at the hearings are summarised as follows:

As one of for "urgent measures for strengthening innovation and economic growth in Germany", the largest financer of investments in German SMEs recommends:

Sinds 1998 laat het Europees Octrooibureau (EOB) programmaconclusies toe, i.e. conclusies van de vorm

Vandaf 1986 liet het EOB reeds procesconclusies toe op objecten waarbij de enige "inventieve" bijdrage lag in dataverwerking, en waarvoor programmaconclusies (zoals nu worden toegelaten) bijgevolg meer voor de hand liggend geweest zouden zijn.

Met andere woorden: steeds wanneer de nieuwe bijdrage waarvoor octrooibescherming gevraagd wordt binnen het bereik van een programmaconclusie valt, is deze niet octrooieerbaar.

zie ook Art 52 EPC: Interpretation and Revision

Het voorstel van de Europese Commissie gebruikt de definitie van het EOB, terwijl het Europees Parlement deze term heeft gedefinieerd als net het omgekeerde: technische uitvindingen waarbij de nieuwe bijdrage niet ligt in het berekenen. De Werkgroep van de Raad heeft nog een andere definitie, dewelke zowel uitvindingen als non-uitvindingen omvat.

zie ook Waarom software -- in het bijzonder ingebedde software -- niet octrooieerbaar zou mogen zijn. en FFII interests and the EU Software Patent Directive

zie The TRIPs Treaty and Software Patents

De verwijzing naar "natuurkrachten" is alomtegenwoordig in het traditionele octrooirecht. Ze is gecodificeerd in het Scandinavische Octrooiwetgevingsverdrag, evenals in verschillende octooiwetten van Oost-Europa en Oost-Azië. Ze verschijn in de meeste besluiten tegen softwarepatenteerbaarheid van Duitse, maar ook van Amerikaanse, Franse en andere rechtbanken.

zie Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention

Het kan modern zijn om dingen gemakkelijk te maken, maar is het ook modern om gemakkelijke dingen te octrooieren?