[News] Eur Patent Office proposes unlimited Patentability
phm at a2e.de
Wed Aug 9 15:09:17 CEST 2000
Eur. Patent Office proposes unlimited patentability
IT professionals demand effective control of the EPO
For immediate Release
Munich, Berlin, Frankfurt, Ilmenau, Magdeburg - The European Patent
Office wants to induce European governments to remove all legal
restrictions on patentability in november 2000. The German Federal
Ministery of Justice (BMJ) distributed a "Base Proposal for the
Revision of the European Patent Convention" dated 2000-06-27 to the
"circles interested in the patent system" at the beginning of August.
The Association for the Promotion of a Free Informational
Infrastructure (FFII) sent an open letter to the BMJ, in which it
pointed out some inconsistencies in the EPO's proposal and warned
about devastative effects of the EPO's expansive patent policy on
innovation, competition, prosperity, education and civil rights.
Ralf Schwöbel, CEO of Intradat AG, a Frankfurt based market leader
in e-shop systems, explains his support for the public letter: "With
this proposal, the EPO creates a legal framework for patenting as many
business methods as the US. As a publisher of e-commerce solutions, we
believe that this is harmful, since it will deter many small and
medium size enterprises from developping their own e-commerce
Recent studies show, that the European Patent Office examiners tend to
grant patents on immaterial objects (such as software and business
methods) even more generously than the USPTO and JPO colleagues.
According to a Japanese comparative study, the EPO applies even
lower standards for assessing the inventivity of immaterial objects.
Moreover, for the purpose of examining the technicity of business
methods, the EPO even plans to abandon its traditional request
that these methods should have an "additional technical effect" beyond
the ordinary use of the computer, as soon as the change in the EPC is
realised as anticipated by the EPO.
Matthias Schlegel, CEO of Phaidros AG, an Ilmenau based pioneer in
meta-modelling of commercial processes, comments: "With tens of
thousands of software and business method patents floating around, our
customers are concerned about legal risks and asking for guarantees.
Our board is considering the formation of millions of DEM of annual
reserve funds to prepare for ligitation and patent applications. But
even we apply for extensive software and business method patents, such
as the EPO seems to be eager to grant, this would be of only limited
use for protecting our copyrights on the modular systems into which we
have been investing from patent attacks of third parties. It would
mainly add to the drain on our ressources, which have to be shifted
away from R&D investments to legal costs. As far as I can see, most of
the typical European software SMEs share our experience. The patent
offices do not know about this, and they don't really care. Therefore
it is extremely important that the regulative competence about what
can be patented stays with the parliaments and is not transferred to
the patent offices."
Co-signer Jens Enders, CEO of MDLink GmbH, a technology leader of
web-based e-business systems from Magdeburg, adds: "Software patents
are good for aging companies who want to fence in their territory for
20 years in order to repose on their laurels. For the protection of
our competitive edge, copyright and human capital serve us well.
Patent politicians who are trying to sell us further "strong IP
protection", seem to simply ignore the rules of our trade."
The "Base Proposal" completes the development, which the president of
software patents workgroup of the Union of European Patent
Consultants, patent attorney Jürgen Betten, predicted in several
publications at the beginning of this year:
By means of the ... development of jurisdiction ... the patent
system has detached itself from its traditional restriction to the
processing industry and is now of essential importance also for
service companies in the fields of commerce, banking, insurances,
telecommunication etc. Without building a suitable patent
portfolio, it is to be feared that the German service companies in
these sectors will find themselves in a disadvantaged position
vis-a-vis their US competitors.
Patent Law gives the patentee a right to exclude others from using
the patented invention. ... In complex fields of technology, in
which the establishment of a "standard" is often a prerequesite for
success with the consumer, such as in the area of entertainment
electronics, telecommunications or the Internet, cross-licensing
has become a frequent and practical form of patent exploitation:
using their own patents "as a currency", companies gain access to
technologies which have been patented by competing companies.
Since the governmental conference of the member states of the
European Patent Organisation has in June 1999 in Paris entrusted
the EPO with the mandate to propose before 2001-01-01 a revised
version of EPC 52.2 concerning the exclusion of computer programs,
so that the modified version can enter into force before
2000-07-01, it is now presumably only a question of time, until the
"computer programs" as well as the other exemption rules are
removed from EPC 52.
The chairman of the German Parliamentary Commission on the New Media,
Jörg Tauss, sees an urgent need for the legislator to act:
In the circles of technological policy experts, you can often here
people asserting that the patent system must be extended to certain
areas of information technology, whose investments would otherwise
not be sufficiently protected. This assertion has however until now
always been touted like a self-evident truth, and nobody I know of
ever cared to substantiate it in the light of facts from the German
or European IT economy.
Even if the patent advocates succeeded in finding areas of
information technology, in which patents are having or have had
some positive effects, it would nonetheless still be necessary to
investigate, whether these effects are not outweighed by possible
detrimental side-effects of the patent system.
But while the legislative authorities are still completely clueless
on this matter, the judicial authorities are already taking action,
granting thousands of software patents and pressing for a change of
the legal rules. We as legislators should therefore now take up
these questions with highest priority.
The FFII letter is designed to help clarify the questions for the
legislator. It suggests means of making the EPO base proposal more
specific, so as to subject the EPO to an effective control by the
legislator. Thereby it turns out that currently no valid reason exists
for changing the law (EPC art 52), while there are good legal reasons
for introducing precise and restrictive definitions for pliable terms
such as "technicity" and "industrial applicability".
The public letter moreover cites economic studies and the EP, which
has meanwhile been signed by approximately 30000 citizens, including
400 executives of IT companies, and supporting statements from nearly
300 European politicians.
But even public protests of this amplitude have so far not prompted
more than a "silence in the forest" on the part of the patent system's
decisionmakers. Already in June 1999 the two BMJ officers in charge of
negotiating for the German delegation at the intergovernmental
conference in Paris did not react to an appeal based on 5000
signatures, and gave the EPO the mandate to change the European Patent
Convention. Little later, both BMJ officers were promoted to new
offices in Munich. One became a leading judge at the EPO, the other
the president of the German Patent Office. And today's president of
the European Patent Office and initiator of the "Base Proposal", Dr.
Ingo Kober, also started his career in the BMJ.
The EPO finances itself by patent fees, collected from the owners of
the patents it grants.
* Eurolinux Petition for a Software Patent Free Europe -
* Software Patents - http://swpat.ffii.org/indexen.html
* Association for the Promotion of a Free Informational
Infrastructure - http://www.ffii.org/indexen.html
About FFII - www.ffii.org
FFII is a non-profit association which promotes the development of
open interfaces, open source software and freely available public
information. FFII coordinates a workgroup on software patents
which is sponsored by successful german software publishers. FFII
is member of the EuroLinux Alliance.
info at ffii.org
Hartmut Pilch +49-89-18979927
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