On Fri, May 02, 2003 at 06:02:13PM +0200, Kurt Garloff wrote:
> Foundation for a Free Information Infrastructure is reporting on an
> issue with a "Joint Statement of the Industry" for Software Patents.
> However, reading the statement, I'm not so sure that FFII did read it
> properly.
> I read point 1 of the statement as general support for software
> patents (as currently practized by the EPO) but with some mitigating
> preconditions (e.g. preventing trivial patents). This should be
> objected against IMHO.
I agree here.
> But I read point 2 as protecting the rights of programmers to reverse
> engineer interfaces to make interoperable software; not only should the
> right be protected against copyright claims, also against patents.
Yes, that's how I read it, too.
> Point 4 is unclear to me without further reading.
Tentative explanation (nothing here is sure AFAIK):
The Open Forum claims:
0) The directive draft says that to get a software patent accepted in
Europe, you must make a pretense that it is not a "pure software
patent", but that the software part is part of a bigger system
that includes hardware parts (a satellite dish, a dvd recorder,
...).
1) Current case law says that if a program, detached of any hardware,
infringes on the patent, then you can sue.
Note: Case law is not written parliament-voted law, but the
collection of justice court decisions, that establishes a
trend. If there are numerous court decisions that uphold, e.g. the
principle that when the parliament law says "you cannot cut green
tree leaves", it holds also for tree leaves that are not of the
green colour, but that are young and alive, then in the next
trials about this, you can say "look, Mr Judge, your colleagues
upheld this principle, so you should, too".
2) The directive draft says that you can sue only people that include
the software in a system including hardware, not people that make
only pure software.
3) But because of the case law, you will still be able to sue people
making only pure software if they are in the same country as
you. Because the European law applies only for transnational
things or something like that.
Thus, it makes a difference what country the "infringement" happens
in, and this breaks the very big, very important, and EU-founding
principle that there should be no difference between countries in this
regard.
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