QUESTIONAIRE ON THE PATENT SYSTEM IN EUROPE
The new deadline for responses is: 31 March 2006.
The EU pages about the questionaire:
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http://europa.eu.int/comm/internal_market/indprop/patent/consultation_en.htmFFII's approach:
James Heald's comments on Malcolm's recent posting about this issue:
Malcolm's initial attempts below.
These are just proposals. Please improve, replace or delete them as appropriate. I've marked my informal comments with MALX. The text for all questions was typed in by me for a paper copy, so it will need to be replaced by pasted versions (in case I boo-booed).
We acknowledge that software patents are currently not available in the EU. However, we feel it is important to reiterate why this is so in any overall view of the patent system.
*** Section [1]: Basic principles and features of the patent system ***
[1.1] Do you agree that these are the basic features required of the patent system?
We agree that a patent system should have the basic features listed.
[1.2] Are there other features that you consider important?
Yes. An additional feature of a worthwhile patent system is that it regards different fields of technology separately. We believe that software is an example of a field of technology where patents would do more harm than good. For other fields of technology, it seems highly unlikely that one length of patent term benefits all fields equally.
[1.3] How can the Community better take into account the broader public interest in developing its policy on patents?
It is our belief that established industry has a disproportionate say in the development of EU legislation. It is unlikely that established industry support changes which make the market more equitable to new competitors. We would encourage the Council/Commission to take more account of expertise from outside established industry.
*** Section [2]: The Community patent as a priority for the EU ***
[2.1] By comparison with the common political approach, are there any alternative features that you believe an effective Community patent system should offer?
MALX: What does "common political approach" mean?
*** Section [3]: The European Patent System and in particular the
European Patent Litigation Agreement ***
[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?
MALX: Would this stop big companies with a presence in several states choosing their favourable jurisdiction, or promote it?
[3.2] Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in you view would be the ideal patent litigation scheme in Europe?
*** Section [4]: Approximation and mutual recognition of national
patents ***
[4.1] What aspects of patents law do you feel gives rise to barriers to free movement or distortion of competition of differences in law or its application in practise between Member States?
MALX: (a possible approach) Parties intending to get patents with weak grounds for acceptance are liable to seek a State most likely to grant them and use this as leverage elsewhere.
[4.2] To what extent is your business affected by such differences?
n/a
[4.3] What are your views on the value-added and feasibility of the different options (1)--(3) outlined above?
Option 1 seems the most likely to provide a quality patent system. In particular, we approve of the idea that there be "exceptions for particular subject matter and specific sectoral rules where these add value".
[4.4] Are there any alternative proposals that the Commission might consider?
*** Section [5]: General ***
(On a scale of one to ten (10 is crucial, 1 is negligible):
[5.1] How important is the patent system in Europe compared to other areas of legislation affecting your business?
10: Patents are the single biggest threat to Free Software developers and users.
[5.2] Compared to 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?
10: For the most part, Free software is compatible with the other branches of law listed. In particular, it makes use of the copyright system to ensure that the freedoms it values are protected. The patent system, on the other hand, is a severe obstacle.
[5.3] How important to you is the patent system in Europe compared to the patent system worldwide?
8: The plight of Free Software developers and users in Europe would be primarily affected by the patent system were software patents ever adopted in Europe. As it stands, the absence of software patents in Europe actually means that Free Software companies are freer to innovate then comparable companies elsewhere.
[5.4] If you are responding as an SME...
n/a
[5.5] Are there other issues other than those in this paper you feel the Commission should address in relation to the patent system?
MALX: SOFTWARE PATENTS
*** Additional Stuff ***
(1) If you would like the Commission to be able to contact you to clarify your comments, please enter you contact details.
(a) Are you replying as a citizen / individual or on behalf of an organisation?
On behalf of an organisation.
(b) The name of your organisation/contact person:
The Irish Free Software Organisation (IFSO). Contact person: (MALX: who goes here?)
(c) Your e-mail address
contact at ifso dot ie (MALX: fix when publishing)
(d) Your postal address
MALX:...
(e) Your organisation's website:
(2) Please help us understand the range of stakeholders by providing the following information:
(a) In which Member State do you reside / are your activities principally located?
Ireland
(b) Are you involved in cross-border activity?
MALX: (possible approach) We consider ourselves to represent Free Software users on the island of Ireland, and beyond.
(c) If you are a company:...
n/a
(d) What is your area of activity?
Promoting the use and adoption of Free Software and defend it when necessary.
(e)--(h)
n/a
{i) Do you have any other experience with the patent system in Europe?
MALX: Our observations on the EU institutions viz. the swpats issue.