David Glaude answers the C4C questions
The C4C Questions (and C4C own answers) were found on http://campaignforcreativity.org/camp4creativity/issues_so.htm. David Glaude provides his own set of answers.
More work is needed, but one to one argument against those lies is required in order to meet MEP with ready answer. Feel free to remove my name and enhance, spellcheck, correct, modify this text to make it better.
THE DIRECTIVE ON COMPUTER IMPLEMENTED INVENTIONS
- Why are patents so controversial at the moment?
... Copyright is the IP right of every creator, be it musical, text or software.
- Why did the European Commission decide we needed a Directive on Computer Implemented Inventions?
Because we currently have a schism in European patent law regarding software patents with some courts following the European Patent Office in allowing software patents and others sticking to the law which disallows them. The directive was conceived in close collaboration between the European Commission and the European Patent Office as a means of imposing the former in Europe.
- What difference will this directive really make?
A lot because most of the patent granted are not used due to the lack of legal ground. The risk to have your software patent invalidated is so high that no-one want to take the risk until the law is changed. The EPO by changing it's practice and granting those patent without a change in the European Patent Convention made a gamble. Now they need to change the law with this directive.
- Why do we need patents for computer based inventions?
Patents might work "well" for car maker and the medical industry because one patent match one product.
In software, one program is a lot of ideas and common knowledge put together into a product. New sofware ideas are always build on the sholder of hundred of older ideas, most of them not 20 years old.
The absence of patent did stimulate innovation in the software world. Software, like books and music and other creation of the mind is protected by copyright wich is both an easy to get and strong intelectual property right.
In US where software patent do hurt the industry, much of the R&D budget is spend in aquiring patent (mostly to be used defensively), avoiding patent infringement and defending against patent litigiation be them valid claim or not. All that money goes to lawyer rather than to development of new and inovative product.
- Couldn't software developers just use another form of IP, such as copyright?
Copyright, licence, trade secret, trade mark are the IP tools of the software industry. There is no "piracy" in implementing similar feature, using similar idea and making compatible independant software creation.
Any computer program implement many idea and functionnality be them new, old, obvious or not. If any number of those ideas or fucntionnalities are patented, this software creation is not possible anymore without paying licence and risking patent attack.
It is the speed to market, the network effect, the file format lock-in that has been used since ever in the software industry to be successfull. Even if competitor try to look like you, if you are always 6 months to a year ahead of competition, customer will follow you. This is what make the software industry so creative and fast moving. Patent will slow down this by introducing explicit monopoly and tools to kill competition.
- Do patents on computer implemented inventions "kill" innovation?
The 30,000 software patents granted in Europe do not hurt the software industry because they can not be enforced. They are not enforced because they are mostly invalid. Only changing the law, like what the original directive wanted to do will make them weapon for patent owner against small software creator. Most of those patent are not from the european industry wich will be unable to compete if software patent are validated in europe.
The software industry successfull strory from the last 20 or 30 years was possible without any patent law. The internet boom and the interoperability available there was only possible because patent were not blocking it's progress.
- Who will be affected by the Directive?
Mobile phones, car makers, machine tool manufacturers, medical instrument developers and household appliance makers don't have to worry. What lies in the physical world stay patentable event if software patent are maintained outlaw. Something that is patentable without software in it will stay patentable even if a bit of software does control it. The software that control it or it's logic should not be patentable but is protected by copyright like any creation.
However, consumer electronics industry should worry about this directive. The monopoly introduced by patent in the software industry mean higher cost and less competition. The patent litigiation risk will make small creator of software afraid to publish their independant development and making compatible product might become impossible without paying a fee. Interoperability will be hurt strongly.
- How will the directive affect open source software?
Software production and distribution will be affected by this directive, and Open Source is not an exeption. While proprietary producers can still take a licence and pay royalties per copies sold, this royalty regime makes Open Source producers not capable to pay licence fees, since they cannot count the number of copies distributed. Some patents owners even wants to track Open Source users for collecting royalties or suing them for patent infringement.
- Is the Campaign opposed to open source software?
- Are there any other implications of the Directive failing?
- What stage has the Directive reached in the European legislative process?
