[MontelLUG] [Fwd: Answer to Community Patent Consultation]

Ven 31 Mar 2006 15:53:12 CEST

Questa è la mail che ho spedito io, potete spedirla così com'è cambiando
l'ultima parte dopo il punto 5.5 (i dati personali insomma...)

------- Messaggio inoltrato -------
Da: Manuel Dalla Lana - SonsOf <manuel a sonsof.net>
A: Markt-D2-patentstrategy a cec.eu.int
Bcc: consultation a ffii.org
Oggetto: Answer to Community Patent Consultation
Data: Wed, 29 Mar 2006 17:44:31 +0200

1.1 Do you agree that these are the basic features required of the
patent system?

The most important feature of the patent system is that it must
guarantee continued or increased innovation. We do not want to see its
expansion in areas where it is counterproductive. For example we do not
want to see an expansion of subject matter without clear evidence that
this produces better results.

1.2 Are there other features that you consider important?

The patent system is only part of the problem. We would like to see an
overall innovation strategy, and more assurance that the patent system
produces "good" patents, in a way that can be emprically defined.

1.3 How can the Community better take into account the broader public
interest

By separating the legislative, judiciary and executive tasks in the
patent system, and by making the patent system accessible to society at
large, not just specialists. We want to see more innovation, not simply
more patents.

2.1 By comparison with the common political approach, are there any
alternative or additional features that you believe an effective
Community patent system should offer?

The most important point is to separate the executive, legislative and
judicial powers which are all currently performed by the EPO to some
extent. We really do not want to see the EPO defining community law,
bypassing the Commission and Parliament.

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?

If the EPLA were to enforce the high-quality patents defined by EPC
article 52, this could have a positive impact. If the EPLA were to
enforce the EPO TBA case law (and thus enforce software and business
method patents), the results would be catastrophic in our opinion.

3.2 Given the possible coexistence of three patent systems in Europe
(the national, the Community and the European patent), what in your view
would be the ideal patent litigation scheme in Europe?

We would want to litigate a Community patent before a Community court,
based on Community law made by Community legislators. This court should
be independent of any Patent Office.

We would want to litigate national patents in national courts. This is
convenient in terms of geography, language, and culture. Given that
European Patents are more or less collections of national patents, at
least the possibility to go to a national court should be kept.

Above all we must be able to appeal to a court which is not bound by the
case law of the executive (the various patent offices), since such
judicial independence is a basic requirement of our justice system.

4.1 What aspects of patent law do you feel give rise to barriers to free
movement or distortion of competition because of differences in law or
its application in practice between Member States?

Any business operating in a country with software patents (like the UK)
is at a disadvantage compared to a business in a country where these are
not allowed (like Poland).

4.2 To what extent is your business affected by such differences?

Our business is affected when we are unable to determine accurately
whether our products and services are "legal" in other member states, so
we are exposed to a significant and unmanageable risk if we decide to
export. Software patents make this risk very high and there is no
insurance available for software patent infringement.
4.3 What are your views on the value-added and feasibility of the
different options (1) - (3) outlined above?

The "subject matter" criterion is missing from the list in point 1.
Subject matter is a critical criterion, since it is on this basis that
the EPO has granted tens of thousands of software and business process
patents.

4.4 Are there any alternative proposals that the Commission might
consider?

All proposals must come back to these basics: does the system guarantee
good patents, transparency, and accountability?

5.1 How important is the patent system in Europe compared to other areas
of legislation affecting your business?

    *

      Without software patents: 1.
    *

      With software and business method patents: 10 (as in, the patent
system becomes a very serious problem for us).

Before the introduction of bad patents, the patent system was of low
importance to us. We did not file patents since we operated in a domain
that was adequately protected by copyrights. Furthermore, the EPO has
told us on several occasions that software could not be patented, so we
assumed this was "off the radar". However, since we started getting
phone calls and threats from patent-owning firms, on the basis of pure
software patents, we have been forced to move the patent issue to become
a top priority.

5.2 Compared to the 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?

    *

      Answer: 1. Completely irrelevant to our business, we have never
used the patent system, but we use trademarks and copyright heavily.

Copyright is free, automatic, proportional, and very effective for all
domains it covers. Trademarks are useful for certain cases. The patent
system has traditionally only been applicable to innovations in fields
of applied natural science. Our company has no direct experience with
patents in this field, so we cannot comment on their effects there.
However, when applied to other areas, the patent system creates
significant distortions. These distortions are clear from any
examination of the litigation that occurs in industries that produce or
use software.

The extreme case of software and business process method patents is of
most concern. These patents create such distortions that they bring the
entire patent system into disrepute. Even US financial analysts are
starting to become concerned that the US is actually becoming less
competitive by having software patents. (See: [WWW]
http://www.cfo.com/article.cfm/5570346?f=home_featured)

5.3 How important to you is the patent system in Europe compared to the
patent system worldwide?

    *

      Answer: 1. We do not seek patents on our software. Copyright and
trademarks are ideal tools for us.

The greatest advantage of the current European patent system, based on
EPC law, with respect to (e.g.) the US patent system is that it largely
protects innovation from the predation of patent speculators (also
called "patent trolls"). This happens through the effect of national
courts, which tend to reject software and business method patents, and
through language and cost barriers which prevent mass-patenting.
Ironically, the higher cost of patents improves the quality of patents,
as can be seen from the US, which has very low patent costs, and very
low general quality of patent claims.

5.4 If you are responding as an SME, how do you make use of patents now
and how do you expect to use them in future? What problems have you
encountered using the existing patent system?

    *

      Answer: 1. We do not seek patents on our software.

My firm does not require or use patents. We rely on copyright, lead
time, trade secrets, trademarks, customer relations management, a free
market, open competition, and protection (by the state) from predation
by firms that seek to use weak patent law in order to create "revenue
streams" that are nothing more than taxes on the work done by others.
The patent system is largely unusable for us and we stay as far away
from it as possible.

This was also confirmed as being the case in general for large, small
and independent software developers (including developers of embedded
software) in a study of German companies by the Fraunhofer Institute for
Systems and Innovation Research in 2003 (See: cfr p15-16 of [WWW]
http://trendchart.cordis.lu/Reports/Documents/Edler_Lux_2003.ppt)

5.5 Are there other issues than those in this paper you feel the
Commission should address in relation to the patent system?

    *

      Answer: 10. Yes. For us, the key issues are not documented at all.

We would like to restate these key issues:

a) The current lack of and urgent need for separation of powers in the
patent system.

b) The current lack of a comprehensive innovation management. The patent
system is only one tool available in the legislator's arsenal of
innovation policy measures. Far too often, more patents are equated with
more innovation. The UK study mentioned in the Commission's impact
assessment of the software patents directive (which received replies
from 11 UK SMEs) showed that these SMEs in general did not care about
patents. The conclusion was not that they did not need patents (this
possibility was not even considered), but that they should be better
informed about the usefulness of patents.

A Community Innovation Office, which bases its recommendations on input
from businesses, academics and civil society, and which can formulate
all-encompassing innovation strategies, would be much more productive
and useful than yet another attempt to force the EU into following the
EPO's case law. Patents should only be applied if a market is clearly
distorted in a way which can be solved by introducing limited time
monopolies. They may also prove to be useful in case innovation in a
market is stagnant because knowledge is too closely guarded and barely
disseminated, thereby hampering follow-up innovation by competitors. But
they are not a magical means which one simply can apply to a field in
order to make it even more innovative and competitive.

c) A functioning patent system must produce measurably good patents.
This essential criteria is not mentioned anywhere. What defines "good"?
How is this measured, over time? What rules are in place to protect that
definition? How are those rules protected from the eternal hunt by
patent specialists who seek to "hack" them into meaning something else?
Which courts judge on these rules? How does the patent system adapt to
change without becoming hijacked by vested interests? How does the
patent system prevent the business of "patent speculation"? These are
the questions that we feel are at the heart of the matter, not the
superficial issues of patent cost, translation, etc.

===========================================================================

(1)
(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:
        Sons Of Società cooperativa a r.l. / Manuel Dalla Lana

(c) Your email address:
        manuel a sonsof.net

(d) Your postal address:
        via feltrina sud, 83
	31044 Montebelluna (TV)
	Italy

(e) Your organisation’s website (if available):
        www.sonsof.net

(2)
(a) In which Member State do you reside / are your activities
principally located?

        Italy

(b) Are you involved in cross-border activity?

        No

(c) If you are a company: how many employees do you have?
        20

(d) What is your area of activity?

        Electronics, ICT, web design, graphic design, architecture,
photography, advertisement, publishing

(e) Do you own any patents? If yes, how many? Are they national /
European patents?

        I don't own patents

(f) Do you license your patents?

        I don't own patents

(g) Are you a patent licensee?

        Yes for some software

(h) Have you been involved in a patent dispute?

        No

(i) Do you have any other experience with the patent system in Europe?

        No

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