Re: [Fsfe-uk] US Lawyer says sue me first :-)

[Ciaran O'Riordan]

Guy Johnston <address@hidden> writes:
> As far as I know, Microsoft's specific claims
> about patents only apply to the US,

Worse, they haven't specified their patent claims in any country.  Not the
USA, not the UK.  Nowhere.  They're just throwing around numbers and vague
statements.

> and a particular patent only applies
> in the country where it was applied for (except maybe in the EU).

This is true, including in the EU.  (One plan that might change that is
called the "Community patent", and another is the EPLA, both of which have
terrible side effects, Wikipedia has more info on each.)

However, MS usually submits the same patent application to many patent
offices around the world, so most or many of the patents they have in the
USA, they also have in most European countries.

The good news in Europe is that usually our national courts do not accept
these software patents as being valid.  The bad news is that this isn't
reliable.

> Also, as
> far as I know, software idea patents can't be granted in the EU (at least
> theoretically).

The power to grant patents is held by a rogue organisation called the
European Patent Office.  This out-of-control group exists in parallel to the
EU and is not subject to the governance structures of the EU or any other
body.  So they can't, for example, be taken to the European Court of Justice
in Luxembourg for mis-reading the definition of what subject matter is and
isn't patentable.

Patents are governed by a system with three bodies, each with separate
powers.  This is like most governance systems in Europe and the USA.
There's an executive (the patent office), a legislature (the European
Parliament, and to a lesser extent national parliaments), and a judiciary
(the national courts).

In the USA, a crazy court decision in 1986 made software patents legal.
There, the legislature cannot be relied on to change the law to benefit the
people.  And, they have a crazy patent office that rubber stamps anything.

So they have three powers, none of which seems capable of fixing this
problem for the USA right now.

In the EU, we have patent offices that are as crazy as in the USA, a
mediocre legislature, and a pretty good judiciary.

If we want to protect Europe from software patents, we need to work with the
legislature (the MPs and MEPs) to improve their ability to deal with issues
like this, and we need to ensure that the judiciary is not changed or
reduced in power (as could happen with the "community patent" or the EPLA).

For more info, there's something I wrote last August which is surprisingly
still quite accurate:
http://www.fsfe.org/en/fellows/ciaran/ciaran_s_free_software_notes/the_future_of_the_patents_battle_and_the_july_12th_hearing


-- 
Ciarán O'Riordan __________________ \ http://fsfeurope.org/projects/gplv3
http://ciaran.compsoc.com/ _________ \  GPLv3 and other work supported by
http://fsfe.org/fellows/ciaran/weblog \   Fellowship: http://www.fsfe.org