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www/philosophy europes-unitary-patent.html

From: James Turner
Subject: www/philosophy europes-unitary-patent.html
Date: Wed, 24 Aug 2011 23:37:59 +0000

CVSROOT:        /web/www
Module name:    www
Changes by:     James Turner <jturner>  11/08/24 23:37:59

Added files:
        philosophy     : europes-unitary-patent.html 

Log message:
        New article about Europe's "unitary patent" RT #705727


Index: europes-unitary-patent.html
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+<!-- Parent-Version: 1.57 -->
+<!--#include virtual="/server/header.html" -->
+<title>Europe&#8217;s &#8220;unitary patent&#8221; could mean unlimited
+software patents - GNU Project - Free Software Foundation</title>
+<!--#include virtual="/server/banner.html" -->
+<h2>Europe&#8217;s &#8220;unitary patent&#8221; could mean unlimited
+software patents</h2>
+<p>by Richard Stallman<br />First published in <a
+The Guardian</a></p>
+<p>Just as the US software industry is experiencing <a
+long anticipated all-out software patent wars</a> that we have
+anticipated, the European Union has a plan to follow the same course.
+When the Hargreaves report urged the UK to avoid software patents, the
+UK had already approved plan that is likely to impose them on UK.</p>
+<p>Software patents are dangerous to software developers because they
+impose monopolies on software ideas. It is not feasible or safe to
+develop nontrivial software if you must thread a maze of patents. See
+&#8220;Software Patents and Literary Patents&#8221;, Guardian, June 20,
+<p>Every program combines many ideas; a large program implements thousands
+of them. Google recently estimated there <a
+be 250,000 patented ideas</a> in a smartphone. I find that figure
+plausible because in 2004 I estimated that the GNU/Linux operating
+system implemented around 100,000 actually patented ideas. (Linux, the
+kernel, had been found by Dan Ravicher to contain 283 such ideas, and
+was estimated to be .25% of the whole system at the time.)</p>
+<p>The consequences are becoming manifest now in the US, but multinational
+companies have long lobbied to spread software patents around the world.
+In 2005, the European Parliament took up the second reading of a
+directive that had been proposed by the European Commission to authorize
+software patents. The Parliament had previously amended it to reject
+them, but the Council of Europe had undone those amendments.</p>
+<p>The Commission&#8217;s text was written in a sneaky way: when read by
+laymen, it appeared to forbid patents on pure software ideas, because it
+required a patent application to have a physical aspect.  However, it
+did not require the &#8220;inventive step&#8221;, the advance that
+constitutes a patentable &#8220;invention&#8221;, to be physical.</p>
+<p>This meant that a patent application could present the required physical
+aspect just by mentioning the usual physical elements of the computer on
+which the program would run (processor, memory, display, etc.). It
+would not have to propose any advance in these physical elements, just
+cite them as part of the larger system also containing the software.
+Any computational idea could be patented this way. Such a patent would
+only cover software meant for running on a computer, but that was not
+much of a limitation, since it is not practical to run a large program
+by hand simulation.</p>
+<p>A massive grass-roots effort &#8212; the first one ever directed at
+convincing the European Parliament &#8212; resulted in defeat of the
+directive. But that does not mean we convinced half of Parliament to
+reject software patents.  Rather, it seems the pro-patent forces decided
+at the last minute to junk their own proposal.</p>
+<p>The volunteer activists drifted away, thinking the battle won, but the
+corporate lobbyists for software patents were paid to stay on the job.
+Now they have contrived another sneaky method: the &#8220;unitary
+patent&#8221; system proposed for the EU. Under this system, if the
+European Patent Office issues a patent, it will automatically be valid
+in every participating country, which in this case means all of the EU
+except for Spain and Italy.</p>
+<p>How would that affect software patents? Evidently, either the unitary
+patent system would allow software patents or it wouldn&#8217;t. If it
+allows them, no country will be able to escape them on its own. That
+would be bad, but what if the system rejects software patents? Then it
+would be good &#8212; right?</p>
+<p>Right &#8212; except the plan was designed to prevent that. A small but
+crucial detail in the plan is that appeals against the EPO&#8217;s
+decisions would be decided based on the EPO&#8217;s own rules. The EPO
+could thus tie European business and computer users in knots to its
+heart&#8217;s content.</p>
+<p>The EPO has a vested interest in extending patents into as many areas of
+life as it can get away with. With external limits (such as national
+courts) removed, the EPO could impose software patents, or any other
+controversial kind of patents. For instance, if it chooses to decide
+that natural genes are patentable, as <a
+US appeals court just did</a>, no one could reverse that decision except
+perhaps the European Court of Justice.</p>
+<p>In fact, the EPO&#8217;s decision about software patents has already
+been made, and can be seen in action. The EPO has issued tens of
+thousands of software patents, in contempt for the treaty that
+established it. (See <a href="http://webshop.ffii.org/";>&#8220;Your web
+shop is patented&#8221;</a>.) At present, though, each state decides
+whether those patents are valid. If the unitary patent system is adopted
+and the EPO gets unchecked power to decide, Europe will get US-style
+patent wars.</p>
+<p>The European Court of Justice ruled in March that a unitary patent
+system would have to be subject to its jurisdiction, but it isn&#8217;t
+clear whether its jurisdiction would include substantive policy
+decisions such as &#8220;can software ideas be patented?&#8221;
+That&#8217;s because it&#8217;s not clear how the European Patent
+Convention relates to the ECJ.</p>
+<p>If the ECJ can decide this, the plan would no longer be certain
+disaster. Instead, the ball would be one bounce away from disaster.
+Before adopting such a system, Europe should rewrite the plan to make
+certain software is safe from patents. If that can&#8217;t be done, the
+next best thing is to reject the plan entirely. Minor simplifications
+are not worth a disaster; harmonization is a misguided goal if it means
+doing things wrong everywhere.</p>
+<p>The UK government seems to wish for the disaster, since <a
+href="http://www.ipo.gov.uk/commissairebarnier.pdf";>it stated in
+December 2010</a> that it wanted the ECJ not have a say over the system.
+Will the government listen to Hargreaves and change its mind about this
+plan? Britons must insist on this.</p>
+<p>More information about the drawbacks and legal flaws of this plan can be
+found in <a href="http://unitary-patent.eu";>unitary-patent.eu</a>.</p>
+<p>You will note that the term &#8220;intellectual property&#8221; has not
+been used in this article. That term spreads confusion because it is
+applied to a dozen unrelated laws. Even if we consider just patent law
+and copyright law, they are so different in their requirements and
+effects that generalizing about the two is a mistake. Absolutely
+nothing in this article pertains to copyright law. To avoid leading
+people to generalize about disparate laws, I never use the term
+&#8220;intellectual property&#8221;, and I never miss it either.</p>
+<!-- If needed, change the copyright block at the bottom. In general,
+     all pages on the GNU web server should have the section about
+     verbatim copying.  Please do NOT remove this without talking
+     with the webmasters first.
+     Please make sure the copyright date is consistent with the document
+     and that it is like this: "2001, 2002", not this: "2001-2002". -->
+</div><!-- for id="content", starts in the include above -->
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+<p>Please send general FSF &amp; GNU inquiries to
+<a href="mailto:address@hidden";>&lt;address@hidden&gt;</a>.
+There are also <a href="/contact/">other ways to contact</a>
+the FSF.<br />
+Please send broken links and other corrections or suggestions to
+<a href="mailto:address@hidden";>&lt;address@hidden&gt;</a>.</p>
+<p>Please see the <a
+README</a> for information on coordinating and submitting translations
+of this article.</p>
+<p>Copyright &copy; 2011 Richard Stallman</p>
+<p>This page is licensed under a <a rel="license"
+Commons Attribution-NoDerivs 3.0 United States License</a>.</p>
+<!-- timestamp start -->
+$Date: 2011/08/24 23:37:30 $
+<!-- timestamp end -->
+<div id="translations">
+<h4>Translations of this page</h4>
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