* 정보공유연대 김영식님이 찾아서 보내주신 글입니다. 첫번째 글은 (1) 소프트웨어 특허에 반대하는10여명의 경제학자들의 열린 편지와 두번째 글은 (2) EU 인터넷 시장및 재정 담당 위원(eurocommissioner for internal market,customs and tax-ation)인 frits bolkestein의 Financial Times논단(op-ed)입니다.참고로예전부터 frits bolkestein의 입장은소프트웨어 특허에 대해 특별한 기술 혁신이 포함되어있어야 하며, 특허가 적용되는 대상은 머신에 탑재된 소프트웨어,혹은 운영 체제와 연결된 소프트웨어에만 적용할 수 있게 하자고 주장한바있고, BM특허에 대해서는 반대했던 것으로 알려져 있습니다.이글에서도 컴퓨터 프로그램은 저작권으로 충분하며, 특허에는 반대하고있군요.자료 출처 :www.nettime.org(1) economists’ open letter- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -< http://www.researchineurope.org/policy/patentdirltr.htm > An Open Letter to the European Parliament Concerning the Proposed Directive on the Patentability of Computer-Implemented Inventions The undersigned economists have grave concerns about the proposed Directive on the Patentability of Computer-Implemented Inventions that has emerged from the JURI committee of the European Parliament and that has been tabled for vote on 1 September 2003. While clothed as an administrative clarification, the proposed Directive will provide opportunities and incentives for the construction of extensive portfolios of software patents. The exploitation of these portfolios will have serious detrimental effects on European innovation, growth, and competitiveness. Unlike most complex technologies, the opportunity to develop software is open to small companies, and even to individuals. Software patents damage innovation by raising costs and uncertainties in assembling the many components needed for complex computer programs and constraining the speed and effectiveness of innovation. These risks and liabilities are particularly burdensome for small and medium sized enterprises, which play a central role in software innovation in Europe as well as North America. Moreover, within the ICT sector, expansion of patent protection has been found to lead to an increase in the strategic use of patents, but not to a demonstrable increase in innovation. Copyright and other rules of competition permit small and medium sized software enterprises to grow despite the overwhelming resource advantages of large companies. As a recent report from the National Academy of Sciences in the US concluded: “[D]eveloping and deploying software and systems may cease to be a cottage industry because of the need for access to cross-licensing agreements and the legal protection of large corporations.” While some small and medium-sized firms will be able to prosper in this new environment, many will not. In particular, validating loosened standards on patentability will cloud the prospects of Europe’s ascendant free and open source software industry while preserving the dominance of present market leaders. We are concerned that the analysis made available to Parliament by the Commission and the JURI committee fails to acknowledge the problems of strategic patenting that have been the growing focus of attention and research in the U.S., as well as the unique characteristics of software development and use.[1] We urge the members of the European Parliament to reject the proposed Directive in its present form and to request that the Commission develop an economic analysis that properly considers the potential consequences of software patenting for European software developers and users. Birgitte Andersen, Birkbeck, University of London Paul A. David, Oxford Internet Institute and Stanford University Lee N. Davis, Copenhagen Business School Giovanni Dosi, Scuola Sant’anna Superiore David Encaoua, Universite Paris I Dominique Foray, IMRI Universite Dauphine Alfonso Gambardella, Scuola Sant’anna Superiore Aldo Geuna, SPRU, University of Sussex Bronwyn H. Hall, University of California, Berkeley and Scuola Sant’anna Superiore Dietmar Harhoff, Ludwig-Maxmiliens Universitaet Peter Holmes, SEI, University of Sussex Luc Soete, MERIT, University of Maastricht W. Edward Steinmueller, SPRU, University of Sussex 25 August 2003 _______________________ [2] For a detailed critique of the rapporteur’s explanatory statement see [3]http://www.researchineurope.org/policy/critique.htmReferences 1. http://www.researchineurope.org/policy/patentdirltr.htm#_ftn1 2. http://www.researchineurope.org/policy/patentdirltr.htm#_ftnref1 3. http://www.researchineurope.org/policy/critique.htm- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -(2) FT op-ed by bolkestein- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -Comment & analysis /CommentPlotting a path for technical patentsBy Frits BolkesteinPublished: August 27 2003 19:47The debate on the European Commission’s proposed directive oncomputer-implemented inventions has generated more heat thanlight. Critics say it is an attempt to introduce patenting ofsoftware and even of pure mathematics. But this is amisinterpretation.The directive will not allow software itself to be patented. Itis about patenting technical inventions that involve computersand use software. We need clear, coherent European rules, basedon existing best practice.The distinction between software itself and the inventions thatuse it may seem a bureaucratic nicety. In fact it is practicaland relatively simple. The point of patents is to reward andencourage invention. An “invention” may be defined as “newinformation that provides the solution to a technical problem”.Software alone is not an invention. A program is just a set oflogical commands. It can do nothing on its own. But when aprogram is loaded into a computer, the resultingsoftware/hardware combination may have a technical function -managing an industrial process or a communication over a mobiletelephone network. Inventions using software to perform suchfunctions could be patented under the proposed directive.This is logical. Often a solution to a technical problem can beimplemented through hardware or software. Take controllers forwashing machines, which can be either electro-mechanical ordigital. Surely any inventor who comes up with a new way ofcontrolling conditions in a washing machine is entitled to patentprotection? To refuse a patent purely because the invention isimplemented using software would make no economic sense and wouldbe against natural justice.The directive would not change core principles but would clarifyexisting practice. Patents have long been granted for inventionsusing computers and related technology. Today, this kind ofinvention accounts for about 15 per cent of all patentapplications, from cars to telecommunications. So we are aimingto make the conditions for patentability clear and uniform and toprevent divergent interpretations by the courts.Some critics of the proposal accept that it should be possible topatent washing machines, telephones and cars. But they say thedata processing that goes on inside a computer is a logicalprocess, akin to pure mathematics, and patents have no placethere. But more and more, inventive everyday objects, includingtelevisions, cookers and fridges, are now “computers” and may beconnected to a network. This underlines the urgent need for soundlegislation, applying to modern realities important principlessuch as interoperability.Without the directive, the very scenario most feared by itscritics could come to pass. The courts could react to theincreasing use of digital technology by regarding anything thatuses a computer as patentable. This is why the proposal focuseson what an invention does (controlling conditions in a washingmachine), rather than how it does it (by software or not). Thedirective makes clear that if an “invention” makes no newtechnical contribution – in other words, if no technical problemis solved – it cannot be patented, no matter what it is or how itis presented. This is the best way of ensuring that softwarecannot be “dressed up” by smart lawyers to make it patentable.The texts now under discussion state explicitly that businessmethods and algorithms cannot be patented.Computer programs are protected by copyright. Some say patentsare therefore unnecessary. But copyright and patents coverdifferent things. Copyright protects a computer code and providesa reward for the investment made in writing it. Patents rewardideas involved in inventions implemented by computers. Thebeneficiaries may be different people.Some suggest that because of the pace of development and thedegree of interdependence between computer-implementedinventions, patents might hinder innovation. The commissionconsidered such arguments but found no evidence to back them up.Fears that patents might be wielded by big battalions againstsmall software developers to drive them out of business have notbeen borne out. European companies, large and small, would be ata severe disadvantage to US and Japanese competitors if they weredenied protection in their home market for their futureinvestments. That is why we need this directive.The writer is European commissioner for the internal market,customs and taxation첨부 파일과거 URLhttp://www.ipleft.or.kr/bbs/view.php?board=ipleft_5&id=208