[News] Eur Patent Office proposes unlimited Patentability

PILCH Hartmut 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 [20]Association for the Promotion of a Free Informational
   Infrastructure (FFII) sent an [21]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 [22]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 [23]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 [24]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 [25]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 [26]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 [27]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.

     * [28]Eurolinux Petition for a Software Patent Free Europe -
     * [29]Software Patents - http://swpat.ffii.org/indexen.html
     * [30]Association for the Promotion of a Free Informational
       Infrastructure - http://www.ffii.org/indexen.html
About FFII - [31]www.ffii.org

   [32]FFII is a non-profit association which promotes the development of
   open interfaces, open source software and freely available public
   information. FFII coordinates a [33]workgroup on software patents
   which is [34]sponsored by successful german software publishers. FFII
   is member of the [35]EuroLinux Alliance.
Press Contacts

          info at ffii.org
          Hartmut Pilch +49-89-18979927
Permanent URL for this PR

    2000-07 [36]SWPAT-AG des FFII
      [ [37]News | EPO aspires to power | [38]1999 SWPAT statistics ]


   1. http://swpat.ffii.org/indexen.html
   2. http://swpat.ffii.org/news/indexen.html
   3. http://swpat.ffii.org/news/aharC7O.txt
   4. http://swpat.ffii.org/vreji/indexen.html
   5. http://swpat.ffii.org/girzu/indexde.html
   6. http://swpat.ffii.org/sarji/indexen.html
   7. http://swpat.ffii.org/penmi/indexen.html
   8. http://swpat.ffii.org/stidi/indexen.html
   9. http://swpat.ffii.org/xatra/indexen.html
  10. http://swpat.ffii.org/purci/indexen.html
  11. http://petition.eurolinux.org/index.en.html
  12. http://www.ffii.org/indexen.html
  13. http://eurolinux.ffii.org/indexen.html
  14. http://mlht.ffii.org/demo/anybr/indexen.html
  15. http://mlht.ffii.org/indexde.html
  16. http://swpat.ffii.org/news/epue28/indexde.html
  17. http://swpat.ffii.org/news/epue28/indexfr.html
  18. http://swpat.ffii.org/news/epue28/indexen.txt
  19. http://www.a2e.de/~phm/langtxt/indexen.html
  20. http://www.ffii.org/indexen.html
  21. http://swpat.ffii.org/xatra/epue28/indexde.html
  22. http://www.intradat.de/
  23. http://www.jpo-miti.go.jp/saikine/repo242.htm
  24. http://www.european-patent-office.org/tws/appendix6.pdf
  25. http://www.phaidros.com/
  26. http://www.skyrix.de/
  27. http://swpat.ffii.org/xatra/miert/indexen.html
  28. http://petition.eurolinux.org/index.en.html
  29. http://swpat.ffii.org/indexen.html
  30. http://www.ffii.org/indexen.html
  31. http://www.ffii.org/
  32. http://www.ffii.org/indexen.html
  33. http://swpat.ffii.org/girzu/indexde.html
  34. http://swpat.ffii.org/girzu/indexde.html
  35. http://eurolinux.ffii.org/indexen.html
  36. mailto:swpat at ffii.org?subject=http://swpat.ffii.org/news/epue28/indexen.html
  37. http://swpat.ffii.org/news/indexen.html
  38. http://swpat.ffii.org/news/aharC7O.txt

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