[Fsfe-ie] Positive news on swpat

James Heald j.heald at ucl.ac.uk
Thu May 13 15:48:42 CEST 2004

Some positive developments internationally.

See stories on the FFII 'breaking news' wiki at

* Luxembourg has called in the text.  There /will/ now be a 
round-the-table discussion of it by the ministers.

It will now /not/ be taken as one of the 'A items' nodded through 
en-bloc at the start of the agenda.

* The leading German official has confirmed Germany still opposes the 
proposed text.

* Belgium and Slovenia are also likely to follow Germany on this.

* Poland: Richard Stallmann and others have made a big impact at a 
lengthy session in the Polish parliament.

Previously Poland appears to have been keeping its head down.

* France: Le Monde has reminded the French president that he had 
previously promised to opposed software patents, before the French 
presidential election in 2002


The issue is very much "in play".


In the UK and Ireland, our best chance I think is to try to convince the 
powers that be that the proposed draft will simply not go through the 
European Parliament, however much the Patent Office is pushing for it, 
because it gives *nothing at all* in the three most important areas 
where the Parliament expressed concern:

-- *nothing* to give explicit reassurance that ordinary discussion of 
algorithms in the form of code fragments will not be silenced by program 
claims. (article 5.2).  A provision that such discussion should be 
considered 'fair use' would at least offer an olive branch here.

-- *nothing* to prevent dominant patent owners locking out specific 
competitors for interoperability by refusing patent licences, short of a 
full-scale EU Competition commission investigation.  (article 6a).  (The 
EP wanted to allow automatic unfettered use.  As a compromise Denmark 
has suggested creating new fast-track procedures to allow compulsory 
RAND licensing -- but this is rejected in the Irish draft)

-- most importantly, *nothing* to clarify what should be considered 
"technical".  The EP wanted a reference to "control of the forces of 
nature" as the acid test, and a statement that the mere processing of 
data is not technical.(articles 2, 3a and 4).  But all the EP's 
amendments in this area are rejected.

Past UK case law also supports the idea that methods which merely 
address generic data relate to "computer programs as such", and only 
become technical if the data has a specific technological relevance 
beyond this; thus the current Patent Office manual states:

     "1.26.4 The reference in Merrill Lynch to Vicom involving an 
increase in speed (see 1.26.2) does not mean that an increase in speed 
of itself is enough. This point was considered in Options Clearing Corpn 
Inc's Application (unreported) when the hearing officer concluded that 
Vicom was allowable because it produced an advance, namely an increase 
in speed, in a technical field, namely the technical field of image
enhancement, and not simply because of the advance itself".

This principle should be upheld; but the EPO is already granting patents 
far beyond this.

The European Parliament proposed a specific amendment that a mere 
increase in the speed of data processing should not of itself be 
considered technical; but this amendment is also to be rejected.

If the Council makes no attempt to engage with the Parliament on any of 
these concerns, it seems quite likely to lose the entire Directive.

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