[ffii] Letter from MEP Malcolm Harbour

[Hartmut Pilch]

Below you find a letter from MEP Malcolm Harbour sent in response to a
free software developper.

When reading Malcolm Harbour's letter you might be interested to know that

- Malcolm Harbour has used every opportunity in ITRE and JURI to
  promote program claims, i.e. claims on

	a program [ on disk ], charaterised that upon loading into memory
        [ something eminently technical ] happens

  whose effect is that publication and distribution of software becomes a
  direct infringment and programmers as well as ISPs can be sued.

  Even the European Commission and McCarthy have refrained from this. Thus
  Harbour is the exponent of a patent-extremist case.

- Malcolm Harbour is a major relay for the industrial patent lawyer
  community in the Europarl.  Some letters from IP lobbies have named
  Harbour as their man and asked other MEPs to watch out for Harbour's
  amendment proposals and support them when they come out.  One such
  letter is published at

	http://swpat.ffii.org/papers/eubsa-swpat0202/ivat0304/

  This is indirectly confirmed by informations in Harbour's respons to Jim
  Peters, which btw looks more direct and frank than most of McCarthy's
  writings, disclosing even facts such as that he has met Taylor in
  person (which probably means that Taylor not only signed the "Industry
  Joined Statement" but also went to see MEPs to lobby for program claims
  and other extreme restrictions on programming freedom (and of course
  against proposals such as those of CULT and ITRE which are more
  favorable to free software).

- Malcolm Harbour has frequently complained about misguided "open source
  lobbying" and "groundless fears due to lack of knowledge of the patent
  system" etc in JURI.  He seems to have some counsellors whom he trusts
  and who supply him with pieces of patent law knowledge that allow him
  to occasionally look down on people who know even less about patent law.
  Like other lawyer MEPs, he is probably quite helpless and unable to
  understand the issues, but happy to speak an unclear lawyer language
  which puts everybody in the audience at an equal level of
  non-understanding, and then able to feel that he here and there may
  be able to understand a little more.  This kind of feeling of
  superiority is fuelling the pro-patent efforts of quite a few people
  in JURI, including EPP shadow rapporteur Joachim Wuermeling from
  Bavaria, who has taken a similar line.

- It is difficult for people without close knowledge of the patent
  metaphysics debate to respond to MEPs like Malcolm Harbour.   Without
  that, there are still some questions which you can ask though, e.g.

  How is it that the EPO has been granting all these broad and
  trivial patents on general purpose computing and business logic at

	http://swpat.ffii.org/patents/txt/ep/
	http://swpat.ffii.org/patents/samples/


   ?

   In what way does the proposed directive address this?

   Which of these would fail the proposed "technical contribution" test?

   Why, based on which articles?

   Why do I, as the man skilled in the art, get the impression that the
   directive as proposed, would exclude none of these examples?

   What "clarification" is there, when concerned people like me read the
   law so diffently from legislators like you?

   If you, Mr. Harbour, want only "genuine technical inventions" in fields
   such as "mobile communications, industrial production ... "
   and not "generic computing" (quote from his letter) to be patentable,
   why are you at the same time pushing for program claims?
   Why wouldn't a claim to

	a mobile telephone, characterised by ... (some calculation rule)
	..

   be enough for you ?

   What "technical invention" can there be, if exploiting it requires
   forbidding the publication and distribution of texts rather than
   apparatusses?

----------------------------------------------------------------------

In brief, it seems that Malcolm Harbour is supporting the proposed
Directive because he thinks it will all be okay.  His argument seems to
hinge on the requirement that a software invention has a 'technical
effect' before it can be patented -- whatever that means.

This is certainly worth a read (or else I wouldn't have bothered to type
it all in).  Any comments would be appreciated.

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Malcolm Harbour, MEP for West Midlands
14-May-2003

Dear Mr Peters,

Thank you for your letter regarding the upcoming Directive on the
patentability of computer-implemented inventions (software patents)
currently under discussion in the European Parliament.  Philip
Bushill-Matthews has passed your letter onto me as I am the West
Midlands Conservative MEP with responsilibity for technology issues.

Regarding your opening comments that someone claiming to rpresent the
Open Source community has already made comments to the European
Parliament, I have met Graham Taylor and he has always made it clear
that OpenForum Europe does not attempt to represent the wider Open
Source community.  Mr Taylor and OpenForum Europe seek only to
represent the opinions and interest of its members.  He has issued a
statement on the OpenForum Europe website to this effect:

  http://www.openforumeurope.org/news/2003/05/09/position_on_software_paten=
ts/

Turning to the substance of your letter, the European Commission
published the draft Directive in February of last year as it become
increasingly clear that European law on patenting software needed to
be clarified.  The aim of the Directive is to set out and defend the
status quo in Europe following changes to the patent system in the USA
and also planned for Japan.  There is a clear intention across the EU
Member States to see that Europe does not follow the USA and Japan in
allowing widespread patent availability for software and business
methods.  Copyright will remain the principal method of protecting
intellectual property in these cases.  I must emphasise that doing
nothing as some members of the Open Source community are suggesting is
not an option.  Some European Papent Courts have already allowed
software patents and a fragmented and inconsistent position will
develop without this Directive.

I and my UK Conservative colleagues support the general line that the
Commission has taken which builds on and clarifies the existing patent
law across the European Union and makes it clear that only software
which forms part of a technological process will be patentable.  This
will allow patents to be provided for genuine technical inventions and
will stimulate Eurpean economic development in areas of economic
strength like mobile telephony, digital television and computer
controlled machine tools to name just a few possibilities.  Contrary
to the impression given in your letter and some misguided lobbying
within the Parliament there is no intention what so ever to allow
generic patenting of software in Europe.

I believe that the balance of the proposed Directive, with the
amendments the Parliament is preparing will get the balance right.
The legal thresholds for granting software patents in the USA and
Japan are set too low and recent court cases in the USA have led to
patents being granted for computer-implemented service activities.  In
Europe, the granting of patents has always required a technical
effect.  I agree with the European Commission and UK Government that
the American approach will not stimulate innovation in Europe.  Change
through a more restictive approach to the patenting of generic
software, algorithms and business methods creates more problems than it
resolves.  It would question the validity of existing patents and
discourage innovation, leading to greater uncertainty in the
technology market.  Such an approach would also conflict with national
laws in the Member States; international treaties including TRIPS, and
existing practice in Europe.

The proposed Directive would set a fair test for software (deciding
whether it has a technical effect) before authorizing a patent.  Any
technical invention in a field outside software can be patented so it
does not make sense for technical inventions, which happen to use
computers to be excluded from the system.  The Parliament is proposing
amendments to clarify the text while ensuring that its principles are
supported.  Codification of the existing position will also avoid
raising complicated issues of the validty of existing patents across
Europe or allowing current unpatentable technologies to claim new
patents.  This will allow European businesses the chance to develop
ideas with certainty as to their legal position.  It will also reduce
the pressure from companies holding permissive American software
patents who wish to gain an extension of their patent rights in
Europe.

Yours sincerely,

Malcolm Harbour MEP

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This is my original letter:


Jim Peters
...
10-May-2003

I am writing to clearly express my opposition to software patents.  I
am a dedicated user of Free Software (also known as Open Source
software) which I use for all my software requirements.  (In other
words, I do not run Windows or Mac OS on my computer; instead I use
Debian GNU/Linux (debian.org)).  In addition, I am an active developer
in a couple of open-source projects, contributing my own work back to
the community under open-source licences for free.  (See
http://uazu.net/)

I understand that someone claiming to represent the Open Source
community has recently made representations to the European Parliament
indicating that the open-source community is in favour of software
patents [*].  The uproar that this has caused in the community should
be some measure of how inaccurate this representation is, and the
strength of feeling on this issue.

It is because of this misrepresentation of our position that I felt it
so important to write to you as my MEP to stress the point -- that
software patents are completely in opposition to the fundamental
principles of free software and open-source software development.

Software patents would require payment for use of patented ideas in
software, and also require payment to lawyers to sort out any disputes
over patent issues (whether or not the disputed source code was in
fact in violation of a patent).  Obviously free software developers do
not have this kind of cash.  Nor do the academics who contribute the
software they create as a by-product of their research to the
community.  These people give their time and work on a project for the
greater good, and it is completely contrary to the spirit and
practical requirements of the open-source community to exchange money.
In short, software patents could potentially kill open-source software
entirely.

It is important to note that the economic benefit of Free/Open-Source
Software is immense despite the fact that no monetary value is
assigned to it.  The entire internet runs on a backbone of software
that has traditionally been open and free.  To take one obvious
example -- the open-source Apache web server (apache.org) is by far
the most popular web server application in use for running web sites.
Add to that the common implementations of less obvious services such
as DNS, FTP, SMTP, POP3 and so on, plus the open-source operating
systems such as Linux, OpenBSD, FreeBSD, etc, which are behind very
many internet servers and services.

In short, the internet would not exist without free software, and free
software is vital as a force for driving forwards community-based
software development (as opposed to proprietary or commercial
'lock-in' style development, which rarely leads to the broad and open
community standards required for effective future electronic
interaction).

Software patents are *not* required to support innovation in the
software world.  The rate of development of ideas continues at a
hectic pace quite happily *without* software patents.  Instead
software patents would restrict innovation by putting power in the
hands of a few large corporations with the cash to legally intimidate
everyone else.

So, I ask that you represent the interests of free software developers
in any way you can within Europe, to maintain the freedoms that are
required for open-source software to survive and flourish.  In
particular, I ask that you oppose software patents at any opportunity.

Many thanks for your help --
					     yours faithfully,

                                             Jim Peters

[* For details of this particular case see here:
   http://perens.com/Articles/Taylor/ ]

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 Uaz=FA                  (_)    /=3D\    ~/_    (_)                http://
 B'ham, UK          (_) ____ /=3D\ ____ ~/_ ____ (_)            uazu.net

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