2004-11-30 Patent Attorney John Collins Slams Linus Torvalds

--> [ Torvalds letter | Patent News ]

A public letter signed by Linus Torvalds in November 2004 which called on the EU Council to refrain from adopting its Software Patent Agreement of May 2004, provoked a knee-jerk reaction by a patent lawyer which was publicised by The Inquirer and Out-Law.com. This article subsequently provoked a series of letters to the Editor.

Media reports

• 2004-12-04 EU The Inquirer: More reader letters in reaction to John Collins' slamming of Linus Torvalds

• 2004-12-01 EU The Inquirer: Patent lawyer patently wrong (letters to the editor published)

• 2004-11-30 EU PA Axel Horns cheers his collegue: "There is little to add to Mr. Collin's assessment.", he writes in his blog.

• 2004-11-30 EU Linus Torvalds gets software patents wrong, says attorney

• 2004-11-30 EU The Inquirer: Linus Torvalds slammed over software patent stance

• 2004-11-23 Appeal by Torvalds et al

Comments

by André Rebentisch: It it nice to read those good old arguments again. They have been answered a long time ago. In politics nobody uses them anymore. Mr. Collins shall consider the maturity of the debate.

Collins' accusations

Official Commission's PR rumors.

• The Directive was originally proposed to provide uniformity in the EU and ensure that all member states took the same approach to the patentability of software inventions so that innovators could be certain that their patents are valid throughout the EU.

A: The reason was that a renegotiation of the European Patent Convention in 2000 was unsuccessful, so an initiative by the European Commission was started to codify the patentability of software within the community. While software patents have been granted for a long time on no sufficient legal basis their validity in court is doubtful. The Commission listened to the wishes of European patent professionals: ex-post codification of EPO pratice and beyond. There is nothing such as a 'software invention' according to EPC. As Mr. Collins admits: 'could be certain that ... patents are valid throughout the EU'. The validity was always in doubt. Innovators are not the same as 'patent holders'. Software innovators live under a damokles sword of software patents applied by players alien to their market. They never requested patents for software from the Commission because no one needs them. Who needs them, who feeds them?

• It has been possible to register software patents in the UK and Europe for over 20 years and so any talk of a potential liberalisation which would allow for a floodgate of spurious patents is nonsense.

We call it legal escape that led to the current mess of thousands of patents that are harmful to our business. The legislator has to correct malpratice. There are so many examples for bad patents, so it is very hard for us to find the good ones. Let us talk about those existing patents from our software patent database or the patented webshop.

Copyright does not provide conceptual/idea protection.

• John Collins, a partner at UK firm Marks and Clerk said: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software".

A: There is no difference between software and "software ideas"/"Software concepts" etc. as software is conceptual per definition. Software is actually the same as "code". The fact that many pieces of software are composed in a higher programming language (such as C++ code, Cobol code, ecc.) and transformed to lower level maschine executable code does not change anything. Copyright does not protect software concepts and everybody including Linus Torvalds is aware of it. There is a reason for it. FFII thinks copyright is a good system and that we should stick to it. Patent law is the wrong instrument to fill a 'protection gap' of copyright law. However, this 'protection gap' is only put forward by patent professionals, not software professionals. The burden of proof lies with the patent community to show that patent law actually achieves what it is supposed to provide and why no extension to copyright (Industrial Copyright as a sui generis right) was more appropriate. We see patent law as an incentive system, an instrument.

There is nothing such as a 'Software invention'. No software developer uses this wording. And according to EPC 52 Programs for data processing and algorithms are not inventions. A technical invention with software as a component can get patented under the European Parliament's proposal as well.

Anonymous comment: Patents protect only to the extend of the patent claims (EPC Art.69 http://www.european-patent-office.org/legal/epc/e/ar69.html#A69; there is no basis in Art. 52 http://www.european-patent-office.org/legal/epc/e/ar52.html#A52 for the protection of concepts "as such" as concepts are "_in_particular_" equal or equivalent to "scientific theories, mathematical methods" (paragraph (2a)) or "schemes, rules and methods for performing mental acts, playing games or doing business" (paragraph (2c)). EPC Art 52 (2) declares that the inventive step must be supported by an additional new and inventive (technical and non obvious) contribution. You may blame the examiner if he grants patents with the literal meaning of the wording used in the claims extend to the concept "as such". Patent law does not provide conceptual protection!

Council version restricts patentability?

• Dr John Collins [..] argues that the latest version of the Directive, far from broadening what can and can’t be patented [..] actually restricts what can and can’t be patented.

A: We follow the debate for a long time and we saw a lot of different draft proposals. Sure, the Council proposal is the most radical of them all. Linus Torvalds is right. The current proposal undermines EPC 52,2. It even codifies program claims in deceptive wording (Article 5.2), you will find that in no previous proposal.

TRIPs argument (legalistic obligations via TRIPs 27)

• Allowing for patent protection on software inventions is a requirement of the World Trade Organisation’s TRIPS agreement which states that patents must be available in all fields of technology.

A: The TRIPS agreement is a trade agreement to ensure that patents are not used as non-tariffic trade barriers. It codifies the status quo in industrial nations. The EU-Parliament confirmed that software is no "field of technology" within the meaning of patent law. See TRIPS & Software Patents

Extent to non-software, here: medical devices

• For instance, there are many digital processing innovations which lie at the heart of technology such as digital television or MRI scanners, or where software has made improvements to existing technologies such as X-ray imaging. [..] Few would argue that these applications of software innovation do not qualify as a ‘technical contribution’ – one of the basic principles for patent protection.

A: The legal term 'Technical contribution' shall not be mixed up with popular understanding. The industry definition of the European Parliament ensures that software as a service is separated from industrial goods such as vacuum cleaners and medical equipment. The debate is no about hardware+software but patents for "computer-implemented inventions" (= Software-Patents).

Interoperability

• The proposal is that an interoperability clause, which is used in respect to software code protected by copyright to allow de-compilation without infringing the copyright, will extend to patents on software inventions. This, says Dr Collins, will mean that many innovations in protocols in the telecoms industry, for example wireless-to-wireless communication or wireless-to-landline communication, could be copied without infringing the patent.

A: The interoperability clause in the Council version is very weak and as Collins mentioned taken from copyright law. No European stakeholder wants patents on communication standards. Patents on standards are not desirable. In Software development interoperability comes first. The Council did not include the real interoperability clause 6a of the Parliament. The interoperability clause in the Council version is rather lip service. However, if a communication standard gets patented it will be described in the patent anyway. So a decompilation exception is not dangerous for patent holders as Mr. Collins assumes but without any value in patent law.

Other comments

http://nosoftwarepatents.com/phpBB2/viewtopic.php?p=874#874

"If a lay-person such as myself can so easily dismiss Mr Collins somewhat pathetic little PR sanctioned outburst, company executives and boardmembers would be well advised to avoid contracting a lawfirm that accepts such blowhards into the fold."