[Fsfe-ie] Met MEP Mairead McGuinness

David O'Callaghan david.ocallaghan at cs.tcd.ie
Thu Mar 31 16:26:49 CEST 2005


First off, it's great that meetings like this are taking place. Thanks
to Ciaran and Barry.

On Thu, 2005-03-31 at 14:13 +0100, Ciaran O'Riordan wrote:
> She found it difficult to understand the current situation whereby software
> patents are not valid but 30,000 have been granted.  I did my best to
> explain that they were speculative patents, 75% owned by the USA and Japan.

Are you sure this is the case? As I understand it these patents have
actually been granted and would be considered valid in law unless they
were overturned.

> She didn't like the issue being painted as big business Vs. small, but
> without using those words, I told her that the situation is just like that.

That's interesting. What was her objection to this?

> > One quick follow up point I'd like to make is about TRIPS.  Article 10 says:
> > 
> >   "Computer programs, whether in source or object code, shall be protected
> >    as literary works under the Berne Convention."
> > 
> > As literary works, not as a field of technology - therefore not covered by
> > Article 27 which says:
> > 
> >   "patents shall be available for any inventions in all field of technology,
> >    provided they are capable [...] of industrial application"
> > 
> > Article 10 could even be interpreted as saying that allowing software
> > patents would actually violate TRIPS - because patents deny authors of the
> > copyrights granted to them by the Berne Convention (my copyrights are
> > useless if someone else makes a patent claim to my work).  But we don't have
> > to go that far to see that it is false to claim that TRIPS requires software
> > patents.

I think this is a pretty tenuous argument. As much as I detest TRIPS I
don't think it clearly excludes computer programs from patentability.
Article 27 section 1 also says "patents shall be available and patent
rights enjoyable without discrimination as to [...] the field of
technology" and there are many reasonable people who would consider
software a field of technology.

Also, I don't think the conflict between copyrights and patents that you
mention is really a strong argument. The copyright you hold on your
program doesn't grant you immunity from patent infringement.

Article 7 says "The protection and enforcement of intellectual property
rights should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the mutual
advantage of producers and users of technological knowledge and in a
manner conducive to social and economic welfare, and to a balance of
rights and obligations." This gives us some hope that arguments about
the detrimental social and technological effects of software patents may
have some impact.

Kind regards,

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