Dear members of the European Commission
I am replying on behalf of
LINUX USER GROUP BOZEN-BOLZANO-BULSAN (LUGBZ)
Oberplanitzing 51
I-39052 Kaltern
http://www.lugbz.org
Contact person: Patrick Ohnewein <patrick.ohnewein(a)lugbz.org>
The Linux User Group Bozen-Bolzano-Bulsan (LUGBZ) is a non-profit and
non-governmental organization dedicated to the diffusion and
manifestation of the operation system GNU/Linux and the free and open
source software in general.
LUGBZ is primarily active in Italy and has about 50 active members. The
organisation represents the opinion of people with different
professional activities but with the same dedication to free software
and the same fear and concerns about software patents in the EU.
Here the answers to the questionnaire:
Section 1
We agree, as the questionnaire states, that the patent system ... should
be used ... for the benefit of all "society". Thus, like all law, it
should be applied where it benefits all society, and excluded from where
it would cause overall harm to society.
Where the questionnaire speaks of "breathing-space" for patent owners,
LUGBZ would like to note that non-industrial activities of citizens must
not be restricted by being designated as the exclusive "breathing-space"
of a patent holder. That is to say that democratised acts, such as
software development and use, and the acts of presentation and
publication of information, which society is able to participate in,
should not become prohibited for the purpose of giving "breathing-space"
to patent holders.
Also, for clarity, we note that we do not regard the list of four patent
system features as being given in order of importance.
1.1 Do you agree that these are the basic features required
of the patent system?
On the four proposed desirable features for a patent system, LUGBZ would
like to make one modification, one clarification, and one addition.
The modification is to the first point. LUGBZ does not believe that
overall objectives of the patent system should be compromised by (or
"balanced with") "the interests of the right holders". The existence of
rights holders is an artificial measure which occurs to serve the
goal of the patent system. Giving power of rule-drafting to a group
which is created by the rules could only yield an outcome with a clear
conflict of interest.
The only balancing to be done is balancing the harm/burden to society
with the benefit to society.
The clarification is that to make "clear substantive rules", the set of
21 amendments which were submitted by members of all EP parties before
the July 2005 vote on the "Software Patents" directive should be used.
We believe that the European Patent Convention is clear, however, the
actions of the European Patent Office and the expressed will of the
citizens of Europe show that it should be made even clearer by the 21
amendments being incorporated.
The addition is described in our answer to 1.2
1.2 Are there other features that you consider important?
The addition is that patent law must advance society rather than inhibit
it. Innovation, when it can be driven by public interest - via public
participation as well as via the market - and when it is produced in a
way that the public will benefit from it, should be encouraged.
The patent system should therefore enable people to further themselves,
individually, or as a business. This should go without saying, but
patent law proposals such as the now-rejected "software patents"
directive show that this must be explicitly kept in mind.
1.3 How can the Community better take into account the
broader public interest
To better take account of broader public interest, developers of
European patent policy should look at the issues from the perspective of
all stakeholders.
It must be kept in mind that some fields of endeavour are the exclusive
domain of large companies. The manufacture of cars and pharmaceuticals
are two examples. For these domains, medium-to-large financial,
bureaucratic, and legal restrictions can be justified because those who
bear the burden can be expected to have the necessary financial and
legal resources.
In stark contrast, in the field of software, even small financial,
bureaucratic, or legal restrictions would cripple most developers of
software because most developers of software are individuals, small
companies, medium sized companies, or companies whose core business
is not software development.
Maximum transparency, the interests expressed by the public, and the
involvement of the directly elected European Parliament, is also requested.
Section 2
2.1 By comparison with the common political approach, are there any
alternative or additional features that you believe an effective
Community patent system should offer?
Yes. It is imperative that the separation of power, a foundation of
European democracy, is maintained - and improved when possible. As such,
one issue that LUGBZ sees is that Judges on any such "Community Patent
Court" (the Judiciary) should not come from the Executive or Legislative
bodies of the patents field. The mixing of legislative power into the
European Patent Organisation (and executive body) is already being seen
by some as the root of problems in European patent law.
LUGBZ is also concerned about the transfer of patent-granting power to
the European Patent Office (EPO). The EPO has granted many patents
contra to the European Patent Convention, and the non-legality of those
patents has been confirmed by rejection of them in national courts. With
this history, the EPO must clearly be given a more limited, supervised,
and accountable role in the patent process.
Section 3
3.1 What advantages and disadvantages do you think that pan-European
litigation arrangements as set out in the draft EPLA would have for
those who use and are affected by patents?
The advantages of such arrangements can only really be judged by the
content and substance.
An agreement which protects Europe from the existence of software
patents, either by legalisation or the granting procedure, would be
beneficial because it would avoid imposing industrial restrictions on
those who cannot bear such restrictions.
We feel, however, that arrangements made within the EU legislative
process are more likely to produce such results.
The EU's legislative process already has problems with lack of citizen
awareness and participation.
Allowing the circumvention of this process for a process further removed
from the people is an anti-democratic direction which should be avoided.
Instead, democratic processes should be followed and ways should be
sought to lower the barrier of entry for citizens and all stakeholders
to participate in the legislative process.
One particular point is that any created courts must very carefully
avoid conflicts of interest.
Judges on such courts must not have prior history within any of the
various patent offices or any organisation with a financial interest in
any of the European patent systems.
3.2 Given the possible coexistence of three patent systems in Europe
(the national, the Community and the European patent), what in your view
would be the ideal patent litigation scheme in Europe?
LUGBZ would like to highlight Article 6 of the European Convention on
Human Rights, particularly with regard to the right to an independent
and impartial judiciary.
On litigation schemes, LUGBZ would like to make the comment that
litigation schemes focus on dispute resolution. While this can be
beneficial by creating case law, it is more important to have clear
rules which can be interpreted clearly by citizens and lawyers without
unnecessarily leaving open the need for court cases. Reliance on court
cases favours a small section of society who can comfortably carry the
legal and financial burden of carrying such a court case to it's conclusion.
Thus, LUGBZ would prefer that such bureaucratic barriers be avoided by
the incorporating of the wording such as that from the 21 amendments
proposed for the second reading of the patents directive in July 2005.
Section 4
4.1 What aspects of patent law do you feel give rise to barriers to free
movement or distortion of competition because of differences in law or
its application in practice between Member States?
The greatest barrier to free movement is the fear that can exist, among
bodies who do not have the spare resources for defending - possibly
spurious - patent litigation threats, of appearing on the radar of a
patent holder.
The greatest distortion of competition is the use of industrial law
against individual citizens and businesses who are not in the same
industry as the patent holder.
Harmonisation could be beneficial if it included clarifications which
could prevent the misreading of the EPC. To do this, the 21 amendments
proposed by many MEPs before the July 2005 vote, should be incorporated.
4.2 To what extent is your business affected by such differences?
We are a user of software, and although LUGBZ is not in the business of
developing software for profit, some of us nonetheless develop a lot of
software because that is the normal way to use computers.
Software patents could have the effect of preventing our members and
other individuals from creating new and free IT infrastructures or from
distributing the software which the free software community develops.
Uncertainty in the law confounds this.
4.3 What are your views on the value-added and feasibility of the
different options (1) - (3) outlined above?
Suggestion #1: subject matter is the core issue and must be more clearly
addressed.
Suggestion #2: lacks definition and cannot be commented on.
Suggestion #3: is the most problematic of all. The conflict of interests
inherent in patent offices which are funded by accepting patents would
be greatly amplified as offices could compete.
Adding a validation step involving the European Patent Office would be a
sham. It would have no appreciable effect on the inherent problem as the
European Patent Office has the worst history of all European patent
offices for expansionism/inflationism of patent law with regard to
subject matter and of lowering the standard for other criteria. European
Patent Office practice is the exact problem which must be addressed
before there can be the possibility to create added value.
4.4 Are there any alternative proposals that the Commission might consider?
Alternatives should begin with the 21 amendments which were proposed by
members of all the EP parties for the July 2005 vote. From there, a
system being developed must contain separation of power, transparency,
and must be accountable when it strays from it's mandate.
Also, the current financial incentive for patent offices to accept
applications must be addressed.
One option is to have the same fee charged for patent application
reviews, whether they are accepted or rejected. The system whereby
patent offices receive greater income for accepting more patents creates
a system which is very close to making the patent offices "sellers" of
patents. To prevent patent offices from aiming to maximise sales, checks
and balances could be introduced; but there is no evidence that these
could be relied on, so it seems also necessary to fix the financial
incentive.
Section 5
5.1 How important is the patent system in Europe compared to other areas
of legislation affecting your business?
The patent system, if stretched to cover software, would pose great
danger to all European software developers (businesses and individuals),
harm to Europe's software infrastructure, and distortion of competition
law. Saving Europe from this harm is a high importance to LUGBZ.
Using the patent system is a non-priority for us, and would get an
importance of 1. Participating in the administration and monitoring of
the patent system is of vital importance to us because changes in patent
law propose a real and serious threat, and would get an importance of 10.
5.2 Compared to the other areas of intellectual property such as trade
marks, designs, plant variety rights, copyright and related rights, how
important is the patent system in Europe?
On this, we would draw attention to the fact that the US Federal Trade
Commission, having reviewed the overall patent system in the USA,
commented that the patent system would be better if it was more
selective about what subject matter is covered, and it gave a wholly
negative report on the outcome of the patenting of software and Internet
ideas.
As mentioned in answer to question 5.1, using the patent system is of no
importance to us (1), but preventing patent legislation from becoming
harmful is of very high importance (10).
5.3 How important to you is the patent system in Europe compared to the
patent system worldwide?
Patent legislation in Europe is of great importance. Europe has the
opportunity, starting with the 21 amendments, to introduce highly
beneficial patent legislation and to become a World leader of sensible
patent policy. On this, the USA missed the boat.
5.4 If you are responding as an SME, how do you make use of patents now
and how do you expect to use them in future? What problems have you
encountered using the existing patent system?
We are not responding as an SME, and as an organisation representing
software developer and user we do not have a need for using the patent
system.
We would like to comment that the barriers to entry which are inherent
in all patent systems are too great for participation to be economically
viable for our members and most European software developers. This is
not a complaint and is not something we ask the European Commission
to fix. Software ideas and usage should not be patentable. This is only
a comment to highlight the economic absurdity software patenting.
Instead, LUGBZ are used by the patent system. Because LUGBZ uses free
software projects to create its own software infrastructure, the patent
system could make LUGBZ a target for patent litigation and a potential
market tool and even a potential revenue source for others.
5.5 Are there other issues than those in this paper you feel the
Commission should address in relation to the patent system?
As mentioned in the preceding answers, other issues to be addressed are
the sensible exclusion of software ideas from patentable subject matter,
the separation of powers which prevents distortion of law in
democracies, the abandoning of the European Patent Organisation's case
law, and the implementation of an accountable system with proper checks
and balances.
The costs, restrictions, and burdens created by the patent system do not
seem to be fully considered. Bureaucratic processes are sometimes
necessary, but they slow society and must be minimised. It must be kept
in mind that every patent is a regulation. Every patent is bureaucracy.
Yours faithfully,
Patrick Ohnewein
President of Linux User Group Bozen-Bolzano-Bulsan