15th maj, 2008

FFII: in need of attention or just plain incompetent?

The other day FFII sent out a new press release titled: McCreevy wants to legalise Software Patents via a US-EU patent treaty.

In this press release FFII tries to induce fear of american standards in European patent law, in the area of computer-implemented inventions. The source of the distress is a draft treaty from the so called B+ group. The FFII is citing article 12 of the draft as the source of a software patent backdoor it says:

(3) [Inventive Step/Non-Obviousness] A claimed invention shall involve an inventive step. It shall be considered to involve an inventive step (be non-obvious) if, having regard to the prior art as defined in Article 8, the claimed invention as a whole would not have been obvious to a person skilled in the art at the priority date of the claimed invention.

The evil words are: “As a whole” which according to the FFII mean that if there is claimed a computer somewhere claims otherwise non-patentable will be patentable. 

That is of course not true. The article must be read in context fx with rule 15 of same draft concerning novelty and non-obviousness. Other articles in the treaty is not cited by the FFII and may block a drift towards US patent law. Furthermore FFII sees the initiative in the B+ group as “The attempt to impose the low US standards on Europe via the Substantive Patent Law Treaty (SPLT) process utterly failed at the World Intellectual Property Organisation. Also progress in the WIPO B+ subgroup (without developing nations) could not be reached. Now the TEC is used as a new forum to push forward with lowering patentability standards through the back door.” Not since the frantic days off FFII FUD in 2006 have I sighed as loud as I did when I read this. They miss the point completely and have obviously not been following the political debate in WIPO or any IP-news services.

The fun part is that in their press release FFII says “As we explained in the past” as if we havent listened before. The fact is that they havent listened to what we said and havent bothered with studying patent law.

So as the headline indicates my question is: Is FFII looking for attention because of a slow period or are they just plain incompetent or in experienced? They even have a lawyer on their board.

Responses

The WIPO page about SPLT is mentioning exclusions of patentability (such as computer programs in the EPC):

http://www.wipo.int/patent-law/en/harmonization.htm

“While the SCP agreed in principle on a number of issues, such as the scope of the SPLT, the right to a patent, novelty, inventive step/non-obviousness or the requirement of sufficient disclosure, some provisions, such as patentable subject matter or the exceptions to patentability, raised concerns about the available flexibility in respect of national policies, recognized under current international treaties.”

Since SPLT failed at WIPO, it is replace by bilateral agreements trying to achieve the same.

So your statement:

“They miss the point completely and have obviously not been following the political debate in WIPO or any IP-news services. ”

contradicts what the WIPO page says.

Please correct your article.

It’s true I did not study patent law for academic purposes, but please correct me if I am wrong that you didn’t read a lot of free software licenses either. Still you wrote a report when you worked at PVS (DKPTO) saying that software patents are not a threat to free software, no? Here’s a reminder of some of the help you got from SSLUG to get things right: http://www.sslug.dk/emailarkiv/itpolitik/2001_07/msg00242.html

But I think did read your PhD thesis. What struck me was that you managed not to mention with one word the Dispositionsprogramm verdict. Why? I also think you concluded that patent law is not made in Copenhagen but in Munich. I think you will find e.g. Ingrid Schneider agree with you, would you dare to read her. It does not even take a man skilled in the art to conjure the same patent industry capture exists in other venues, like WIPO.

Btw, is your thesis still not available online?

@zoobab. I am sorry that I have not been clear enough in my writing. FFII writes that the US tries to bully their own agenda into European patent law via the B+ group. This is not true. The reason for the formation of the B+ group was the obstruction of the WIPO process by a segment of developing countries. See the FICPI homepage for a 3rd party description of the project.
http://www.ficpi.org/newsletters/58/58.html#harmon
My comments where directed to the subject of software patents (which are not allowed in Europe), and I will still maintain that the FFII comments are wrong in that context.

@Erik
I have read all the licenses (that used to part of my job), so I’m pretty well off in that department. The report that the DKPTO published some years ago was not written or researched by the office but by a independent consultant. I followed the report process, but did not write it. In my opinion it is still a great report and the conclusions are valid, though. I think the conclusion you refer to is on page 33 of the report which translated says that it is not obvious that there is a conflict between IP-law and open source software. In my personal opinion there is no conflict on a legal level – all software must tackle IP issues. The conflict is on a business model level.
I read some of Ms. Schneiders comments on the EPO system, and I even agree with some of them. The problem of governance of the EPO could be solved by the EU-patent but that seems far away. The WIPO is an organization which is 100 times more complex so little is actually happenoing there on the substantive level. The B+ group is outside the WIPO and therefore a wholly new entity and actually not an organisation.

@Erik. BTW my thesis is not a PhD (you are thinking of Kim G. Hansen who did a major work in this field)
My masters thesis however is still to be found on the SSLUG website
http://www.sslug.dk/artikler/US_software_patent.html

@Beyer

You are true when you say that the formation of the B+ group is caused by some countries at WIPO who were blocking the negotiations. My understanding is that the B+ group is outside of WIPO.

Nevertheless, I don’t see why you don’t feel that the proposed bilateral treaty could not contain provisions on exceptions to patentability.

Do the “Everything made by man under the sun” will be also applicable in Europe soon?

@Zoobab
The bilateral treaty could contain provisions on patentability, but my point is that the draft to which the FFII refer to does not contain any references to the exceptions.

I do not believe that the american doctrine will be adopted in Europe. That would require quite a turn around from todays practice. I believe that the EU countries are very observant of any changes which could mean a change of the current legal: The problem is that since the EU-Commissions textt for a harmonizing directive failed a few years ago the possibility for a movement is still present in the courts.

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