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diff --git a/talermerchantdemos/blog/articles/en/europes-unitary-patent.html b/talermerchantdemos/blog/articles/en/europes-unitary-patent.html new file mode 100644 index 0000000..ebd7a7a --- /dev/null +++ b/talermerchantdemos/blog/articles/en/europes-unitary-patent.html @@ -0,0 +1,199 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.90 --> +<title>Europe's “unitary patent” Could Mean Unlimited +Software Patents - GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/europes-unitary-patent.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Europe's “unitary patent” could mean unlimited +software patents</h2> +<p>by Richard Stallman<br />First published in <a +href="http://www.guardian.co.uk/technology/2011/aug/22/european-unitary-patent-software-warning"> +The Guardian</a></p> + +<p>Just as the US software industry is experiencing <a +href="http://www.fsf.org/blogs/community/tal-when-patents-attack">the +long anticipated all-out software patent wars</a> that we have +anticipated, the European Union has a plan to follow the same course. +When the Hargreaves report urged the UK to avoid software patents, the +UK had already approved plan that is likely to impose them on UK.</p> + +<p>Software patents are dangerous to software developers because they +impose monopolies on software ideas. It is not feasible or safe to +develop nontrivial software if you must thread a maze of patents. See +“Software Patents and Literary Patents”, Guardian, June 20, +2005.</p> + +<p>Every program combines many ideas; a large program implements thousands +of them. Google recently estimated there <a +href="http://www.guardian.co.uk/technology/2011/aug/04/apple-patents-android-expensive-google">might +be 250,000 patented ideas</a> in a smartphone. I find that figure +plausible because in 2004 I estimated that the GNU/Linux operating +system implemented around 100,000 actually patented ideas. (Linux, the +kernel, had been found by Dan Ravicher to contain 283 such ideas, and +was estimated to be .25% of the whole system at the time.)</p> + +<p>The consequences are becoming manifest now in the US, but multinational +companies have long lobbied to spread software patents around the world. +In 2005, the European Parliament took up the second reading of a +directive that had been proposed by the European Commission to authorize +software patents. The Parliament had previously amended it to reject +them, but the Council of Europe had undone those amendments.</p> + +<p>The Commission's text was written in a sneaky way: when read by +laymen, it appeared to forbid patents on pure software ideas, because it +required a patent application to have a physical aspect. However, it +did not require the “inventive step”, the advance that +constitutes a patentable “invention”, to be physical.</p> + +<p>This meant that a patent application could present the required physical +aspect just by mentioning the usual physical elements of the computer on +which the program would run (processor, memory, display, etc.). It +would not have to propose any advance in these physical elements, just +cite them as part of the larger system also containing the software. +Any computational idea could be patented this way. Such a patent would +only cover software meant for running on a computer, but that was not +much of a limitation, since it is not practical to run a large program +by hand simulation.</p> + +<p>A massive grass-roots effort—the first one ever directed at +convincing the European Parliament—resulted in defeat of the +directive. But that does not mean we convinced half of Parliament to +reject software patents. Rather, it seems the pro-patent forces decided +at the last minute to junk their own proposal.</p> + +<p>The volunteer activists drifted away, thinking the battle won, but the +corporate lobbyists for software patents were paid to stay on the job. +Now they have contrived another sneaky method: the “unitary +patent” system proposed for the EU. Under this system, if the +European Patent Office issues a patent, it will automatically be valid +in every participating country, which in this case means all of the EU +except for Spain and Italy.</p> + +<p>How would that affect software patents? Evidently, either the unitary +patent system would allow software patents or it wouldn't. If it +allows them, no country will be able to escape them on its own. That +would be bad, but what if the system rejects software patents? Then it +would be good—right?</p> + +<p>Right—except the plan was designed to prevent that. A small but +crucial detail in the plan is that appeals against the EPO's +decisions would be decided based on the EPO's own rules. The EPO +could thus tie European business and computer users in knots to its +heart's content.</p> + +<p>The EPO has a vested interest in extending patents into as many areas of +life as it can get away with. With external limits (such as national +courts) removed, the EPO could impose software patents, or any other +controversial kind of patents. For instance, if it chooses to decide +that natural genes are patentable, as <a +href="http://www.techdirt.com/articles/20110729/16573515324/appeals-court-says-genes-are-patentable-because-theyre-separate-your-dna.shtml">a +US appeals court just did</a>, no one could reverse that decision except +perhaps the European Court of Justice.</p> + +<p>In fact, the EPO's decision about software patents has already +been made, and can be seen in action. The EPO has issued tens of +thousands of software patents, in contempt for the treaty that +established it. (See “<a +href="https://web.archive.org/web/20190120193501/https://webshop.ffii.org/">Your +web shop is patented</a>”.) At present, though, each state decides +whether those patents are valid. If the unitary patent system is adopted +and the EPO gets unchecked power to decide, Europe will get US-style +patent wars.</p> + +<p>The European Court of Justice ruled in March that a unitary patent +system would have to be subject to its jurisdiction, but it isn't +clear whether its jurisdiction would include substantive policy +decisions such as “can software ideas be patented?” +That's because it's not clear how the European Patent +Convention relates to the ECJ.</p> + +<p>If the ECJ can decide this, the plan would no longer be certain +disaster. Instead, the ball would be one bounce away from disaster. +Before adopting such a system, Europe should rewrite the plan to make +certain software is safe from patents. If that can't be done, the +next best thing is to reject the plan entirely. Minor simplifications +are not worth a disaster; harmonization is a misguided goal if it means +doing things wrong everywhere.</p> + +<p>The UK government seems to wish for the disaster, since <a +href="http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/commissairebarnier.pdf">it stated in +December 2010 [archived]</a> that it wanted the ECJ not have a say over the system. +Will the government listen to Hargreaves and change its mind about this +plan? Britons must insist on this.</p> + +<p>More information about the drawbacks and legal flaws of this plan can be +found in <a href="http://unitary-patent.eu">unitary-patent.eu</a>.</p> + +<p>You will note that the term “intellectual property” has not +been used in this article. That term spreads confusion because it is +applied to a dozen unrelated laws. Even if we consider just patent law +and copyright law, they are so different in their requirements and +effects that generalizing about the two is a mistake. Absolutely +nothing in this article pertains to copyright law. To avoid leading +people to generalize about disparate laws, I never use the term +“intellectual property”, and I never miss it either.</p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations +README</a> for information on coordinating and submitting translations +of this article.</p> +</div> + +<!-- Regarding copyright, in general, standalone pages (as opposed to + files generated as part of manuals) on the GNU web server should + be under CC BY-ND 4.0. Please do NOT change or remove this + without talking with the webmasters or licensing team first. + Please make sure the copyright date is consistent with the + document. For web pages, it is ok to list just the latest year the + document was modified, or published. + + If you wish to list earlier years, that is ok too. + Either "2001, 2002, 2003" or "2001-2003" are ok for specifying + years, as long as each year in the range is in fact a copyrightable + year, i.e., a year in which the document was published (including + being publicly visible on the web or in a revision control system). + + There is more detail about copyright years in the GNU Maintainers + Information document, www.gnu.org/prep/maintain. --> + +<p>Copyright © 2011, 2019 Richard Stallman</p> + +<p>This page is licensed under a <a rel="license" +href="http://creativecommons.org/licenses/by-nd/4.0/">Creative +Commons Attribution-NoDerivatives 4.0 International License</a>.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2019/12/30 11:28:30 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |