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JURI ændringsforslag (gode)



Hej!

De følgende er et par udvalgte ændringsforslag, der er
stillet til EU parlamentets JURI udvalg før behandlingen
af EU kommissionens software patentdirektiv.

Se
http://www.europarl.eu.int/meetdocs/committees/juri/20030428/495297DA.pdf
http://www.europarl.eu.int/meetdocs/committees/juri/20030428/495297EN.pdf


Der vil blive stemt om disse i JURI udvalget, hvis nogle
af de følgende accepteres så er det godt, fordi det vil 
væsentligt begrænse hvad for software patenter, der er gyldige,
hvis de ikke accepteres så vil direktivet åbne for at udtage
patenter på stort set alle softwarefunktioner. Der er i alt
74 ændringsforslag, og en del af dem går også i den forkerte
retning, så slaget er langt fra vundet.

Amendment by Raina A. Mercedes Echerer, Evelyne Gebhardt, Neil MacCormick, 
Luis Berenguer Fuster and Ilka Schröder Amendment 32 Recital 13


(13) A defined procedure or sequence of actions, when performed
with the help of an apparatus such as a computer, may contribute
to our knowledge about the cause-effect relations of controllable
forces of nature and thereby constitute a patentable invention.
However, an algorithm or a computer program, regardless of whether
the symbolic entities of which it is composed can be interpreted
as referring to a physical environment or not, is inherently
non-technical, and cannot therefore constitute a patentable invention.

Justification:

The first sentence was unclear and could be interpreted such that
otherwise non-patentable "sequences of actions" could recieve
patent protection when performed by a computer. The technicity of
an assumed "computer-implemented invention" should not reside in
the mere fact that a computer is used, but in the fact that it
involves the use of controllable forces of nature to achieve a
technical effect distinct from the ones involved in the processing
of information by the computer program. The directive deals with
computer-implemented inventions, that is, inventions the realisation
of which involves computer programs, but computer programs are
not inventions themselves since they do not belong to the physical
realm and are protected by copyright. The computer equipment and
software used to implement the invention should not be covered by
the patent.



Amendment by Evelyne Gebhardt Amendment 35 Recital 16 a (new)

(16a) At the international level, Europe is ahead in the area
of open, alternative development and licensing approaches to
computer programs, e.g. open source projects under the  General
Public License . Particularly in the light of increasing
requirements for stability, interoperability and IT security of
computer programs, open source computer programs developed on
a common, ongoing and transparent basis are gaining in importance.
In order to turn this European lead in terms of development into
a real competitive advantage, the legal framework conditions for
such alternative development and licensing approaches must
continue to be able to be relied upon.

Justification:

Europe has the biggest community of developers and users of open
source software (e.g. Linux and Apache). Thanks to the transparent
conditions under which it is developed and its significantly
lower costs in comparison with proprietary solutions, such software
is growing in importance, in particular in sensitive fields of
application (security, secrecy protection, etc) or in areas subject
to growing cost pressures (e.g. public administration). This
directive should not make the already complicated legal framework
for such project approaches even more complex.



Amendment by Piia-Noora Kauppi Amendment 37 Recital 18

(18) The rights conferred by patents granted for inventions within
the scope of this Directive shall not affect acts permitted under
Articles 5 and 6 of Directive 91/250/EEC on the legal protection
of computer programs by copyright, in particular under the provisions
thereof in respect of decompilation and interoperability. In
particular, acts which, under Articles 5 and 6 of Directive 91/250/EEC,
do not require authorisation of the rightholder with respect to
the rightholder's copyrights in or pertaining to a computer program,
and which, but for Articles 5 or 6 of Directive 91/250/EEC, would
require such authorisation, shall not require authorisation of the
rightholder with respect to the rightholder's patent rights in or
pertaining to the computer program.


Justification:

Unlimited patent protection for software could make it illegal
under patent law to engage in reverse engineering practices employed
by software developers to achieve interoperability as currently
permitted under the exceptions in the Software Copyright Directive.
Therefore future EU legislation related to software patents must
include an explicit exception to patent rights in order to ensure
that developers of software can continue to engage in the same
acts to achieve interoperability under patent law as they are
allowed to today within the limits of copyright law.


Amendment by Raina A. Mercedes Echerer, Evelyne Gebhardt, Neil MacCormick, 
Luis Berenguer Fuster and Ilka Schröder Amendment 41 Article 2, point (a)

(a) "computer-implemented invention" means any technical solution
the implementation of which involves the use of a computer, computer
network or other programmable apparatus and having one or more prima
facie novel or non-novel implementation features which are realised
wholly or partly by means of a computer program or computer programs,
whereas the prima facie novel solution features depend wholly or
partly on the presence of peripheral hardware which uses forces of
nature in an inventive way;

Justification:

The initial definition of patentablility is too broad. In particular,
a computer-implemented invention should not be considered patentable
on the mere fact that a computer is used, or that software which runs
on a non-novel programmable apparatus is novel. A technical
contribution should be assessed.


Amendment by Raina A. Mercedes Echerer, Evelyne Gebhardt, Neil
MacCormick, Luis Berenguer Fuster and Ilka Schröder Amendment 46 Article 3

Member States shall ensure that data processing is not considered
to be a field of technology in the sense of patent law, and that
innovations in the field of data processing are not inventions in
the sense of patent law, regardless of whether they are executed
in the human mind or by means of technical devices.



Justification:

In order to achieve the goals of fostering innovation, competitivity
and growth in the European software sector, the patent system should
apply only to areas where it has some economical soundness, that is,
in the material realm, while no global economical benefit of patents
have been evidenced for immaterial goods, as reported in report
Juri-107, for instance. Moreover, this amendment provides legal
certainty, by defining clear limits between the domains of
patentable inventions and of non-patentable immaterial innovations.



Amendment by Raina A. Mercedes Echerer, Evelyne Gebhardt, Neil MacCormick, 
Luis Berenguer Fuster and Ilka Schröder Amendment 63 Article 5 a (new)

Member States shall ensure that the production, handling,
processing, diffusion and presentation of information in whatever
form can never constitute a direct or indirect patent infringement,
even when technical devices are used for that purpose.

Justification:

The purpose of this amendment is to prevent the patenting of
so-called "business methods" (that is, in fact, information processing)
patents that exist in the United States and should not exist in the EU.
Also, one has to make sure that the execution on any programmable
apparatus of software that does not contribute to any technical process
should not be patentable. Else, any generic software running on
some programmable apparatus having novel features could be patentable,
which is explicitely prohibited by the European Patent Convention of
1973, as stated in Recital 7.



Amendment by Raina A. Mercedes Echerer, Evelyne Gebhardt, Neil MacCormick, 
Luis Berenguer Fuster and Ilka Schröder Amendment 70 Article 7 a (new)

The European Parliament shall form a permanent committee on the criteria
of patentability. This investigation committe shall be empowerered to
take appropriate means to obtain any needed information from the
European Patent Office, the European Commission and important industry
players. The European Community retains the freedom to adopt a stricter
interpretation of concepts such as "invention", "techical character",
"inventivity" and "industrial application" any time later and to apply
this stricter interpretation retroactively to patents which were granted
under looser interpretations when this is found to be in the public
interest.


Justification

Since the criteria for patentability may have a tremendous impact on
entire business fields and therefore impact the economy and society
as a whole, it is of utmost importance to have them defined under
parliamentary control. The legality of this amendment has to be
checked with respect to the roles of the different European institutions.





-- 
          Mvh. Carsten Svaneborg
       http://www.softwarepatenter.dk
 hvor fremtidens idemonopoler bekæmpes idag.


 
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