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[Esp-action-alert] new

From: Reinier Bakels
Subject: [Esp-action-alert] new
Date: Fri, 06 Mar 2009 21:02:14 -0000

Hi all,
Moments ago I subscribed to this list because I wondered whether FSF is als=
o involved in the European anti-swpat scene. As you may know, last October =
the President of the European Patent Office has referred a number of questi=
ons on the limitations of software patentability to the Enlarged Board of A=
ppeal of the EPO, and "amicus curiae briefs" can be submitted until the end=
 of April 2009.

My background: as a European legal scholar with a long experience in the IT=
 industry, I am involved in the swpat issue since 2000. In 2002 I wrote a v=
ery critical report on software patenting commissioned by the European Parl=
iament, and I have supported European activists against the (former) "compu=
ter implemented inventions" directive (that was rejected in 2005, as you kn=

The present "referral" is a very tricky thing. Because it is essentially a =
court case, there is little room to insert policy arguments. Another proble=
m is that the questions are so detailed that only yes/no answers can be giv=
en if they are read as they are written. Would an amicus curiae brief be th=
e place to criticise the questions, or would it be better to seek outside p=
ublicity for that purpose?

Another problem is that imho it is hard to draw an appropriate line between=
 patentable and non-patentable subject-matter. Obviously s/w and b/m patent=
s are mostly very bad for society. But drawing a proper line is difficult. =
The new US "machine or transformation" test is questionable, because histor=
y shows that the "transformation" concept in law is very vague, and open to=
 undesirable interpretations. The European "technical contribution" test is=
 equally vague and open to manipulation.

Perhaps it is not a popular message on this list, but imho a solution in th=
e form of a provisions "software patenting is not allowed" is not feasible.=
 I have some thoughts about better alternative but for the sake of space I =
will not elaborate them here.

Groeten, Gr=FC=DFe, Regards, Cordialement, H=E4lsningar, Ciao, Saygilar, =
=DCdv=F6zlettel, Pozdrowienia, Kumusta, Adios, Oan't sjen, Ave, Doei, Yasso=
u, Yoroshiku, Sl=E1n, Vinarliga, K=E6r Kvedja
private: Johan Willem Frisostraat 149, 2713 CC Zoetermeer, The Netherlands =
telephone: +31 79 316 3126, GSM ("Handy") +31 6 4988 6490,  fax +31 79 316 =
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