Re: An Open Letter On Software Patents and EU Election (fwd)

Alex Macfie wrote:

> On Sat, 2004-06-05 at 20:25, James Heald wrote:
> 
>>Andrew Duff MEP (Eastern Region, Lib Dem) does seem genuinely 
>>sympathetic to the overall argument for copyright rather than patents -- 
>>but seems primarily drawn to unhappy compromise -- "any directive rather 
>>than no directive", and "no point in backing anything which won't 
>>achieve a qualified majority".
>>
> 
> 
> So he doesn't want to stand up to the Commission. This "any law is
> better than none" mentality, which seems to be common among our MEPs, is
> sad because here, as is so often the case, it simply isn't true. On the
> face of it, it would appear that Tom's post that discussion on the EU
> are off-topic, but it may be relevant that some MEPs --- and some
> LibDems may be among this --- have a tendency to think that being
> "pro-European" means that you mustn't rock the boat too much.
> 
> This is one time when we actually have the chance to shape the legal
> framework. If we have the wrong framework, we won't have a chance to
> correct it. Better to keep holding out for what we want than settle for
> a "compromise" which is then set in stone.
> 
> Mr Duff also needs to understand that there's no possible compromise
> with the patent movement. Not only because leaving open 5 doors to
> unlimited patentability is not a meaningful compromise between closing
> all doors and leaving open 10 doors. But also because the so-called
> "compromises" actually leave open the same 10 doors, just hidden behind
> a thicket of waffle.
> 
> Alex (a disillusioned LibDem)
> 

To be fair, the argument that seems to have been pushed strongest at 
Andrew Duff is the one that the EPO has been steadily drifting towards 
wider and wider patentability, and without the directive it will go the 
whole way to the American model.  The Directive would at least 
institutionalise the "technical" criterion, with legislative weight; 
which would put a stake in the ground, both at the EPO, and if EU was 
ever taken to a WIPO tribunal over the issue by the Americans.

I think I countered this quite effectively in Mr Duff's mind, by 
pointing out to him that UK caselaw was currently pinned by the decision 
in "Gale's Application" - that a novel faster algorithm for long 
division counted as a program as such (even when implemented in ROM). 
Subsequent UK caselaw has interpreted this decision to mean that an 
improvement in /generic/ data processing is not patentable, only in data 
processing tied to a particular application (eg, in Vicom, image 
enhancement).

But this previous case-law potentially becomes irrelevant if any new 
legislation is passed... hence the real danger of a dodgy compromise.


Andrew Duff does at least at a philosophical level seem to appreciate 
some of the undesirability of software patenting -- he did genuinely 
seem concerned, enough to say he was going to add the issue to various 
points he was going to raise at a meeting he has scheduled soon with 
Lord Sainsbury.

He seemed to hold Lord S in some regard, as somebody with some real 
judgement, genuinely his own man, not just a creature of his civil 
servants.

Which makes it a pity that the letters from Lord S are so full of the 
benefits of swapts to SMEs...