Media Coverage:
Conference - THE POLITICS AND IDEOLOGY OF
INTELLECTUAL PROPERTY, MARCH 20-21, 2006, BRUSSELS

Contents

(Thanks to EDRi board member Ian Brown for collecting some of the coverage together as part of the EDRi report.)

20/3/2006, www.ip-watch.org

A Philosophical Take On The Current Global IP Debate Meets Reality

posted by Tove Iren S. Gerhardsen @ 6:16 pm

BRUSSELS - A debate on intellectual property and the “knowledge commons” started out with a review of rhetoric and ideology here today but soon got more heated as the discussion turned to examples from real life, such as the patentability of maize.

The event is hosted by the Trans Atlantic Consumer Dialogue, a forum of 65 consumer organisations from the European Union and United States, which acts a consultative body. There are some 100 participants and although civil society groups are heavily represented, the presence of various industry representatives is providing grist for debate.

Bruce Lehman of the Washington-based Akin Gump, Strauss Hauer & Feld, and the former head of the US Patent and Trademark Office, called the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “a failure” for the United States.

Lehman said that the United States agreed to provide market access to other countries with a comparative advantage in wages, leading to even cutting-edge US technology products being manufactured abroad. But while the United States has kept its part of the bargain, the advanced developing countries have not, he said. “It’s been a failure,” he said.

Lehman, who headed the USPTO when the TRIPS agreement took effect on 1 January 1995, said he would have introduce labor and environmental standards into the agreement so that manufacturing would not have left the United States. Lehman served under Democratic President Bill Clinton, and criticised the Bush administration’s ability to execute IP policy.

The debate heated up earlier in the day when Sangeeta Shashikant from the non-governmental Third World Network talked about how civil society groups have played a very important role in the current thinking on IP, saying that one could not talk about IP today without mentioning public health.

She said there is a “gene patent rush” and companies are trying to patent basic staple foods such as rice and maize. This is an attempt to gain ownership over material that for centuries has been shared by people, she said.

There is a “gold rush in the idea economy,” Shashikant said. She noted that the key pressure points were the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) - especially the patenting of life forms and pharmaceuticals - the standard-setting exercises in the World Intellectual Property Organization (WIPO), and bilateral free trade agreements. Such agreements are “sold” to developing countries by promising technology transfers, foreign direct investment and innovation in return, Shashikant said. There is a need for greater awareness at the national level, she said.

Lehman took issue with Shashikant’s presentation. He argued that the TRIPS agreement requires novelty, so that neither maize nor the genome is patentable, and that using that example undermined Shashikant’s credibility.

Shashikant replied that she agreed that plants and living organisms should not be patented, but TRIPS left it up to governments to decide what could be patented, and thus maize and turmeric are indeed being patented today. There is a trend for allowing patenting in these areas, she said.

Lehman also took issue with a comment made by Sisule Musungu of the intergovernmental South Centre, who as a respondent said that developing countries have started to speak up more in WIPO, citing the current Substantive Patent Law Treaty discussions as an example.

Musungu said that when developing countries started making proposals, members of the WIPO secretariat and some countries showed “tremendous irritation” as “people who do not know about IP are telling us about patents.” Musungu said the developing countries were regarded as “confused people” who have “never worked in a patent office.”

Lehman said that the knowledge in the patent offices should not be belittled, as it takes expertise to know, for instance, that maize cannot be patented. Musungu replied that while patent offices have a role to play, it is no longer acceptable that a few people from patent offices “sit around and decide for the world.”

Musungu also said that while developed countries want strong IP rights, developing countries want market access, but he warned against the debate being between developed countries and high-income developing countries, leaving out the least-developed countries.

James Love, director of the Consumer Project on Technology, said it is a narrow perspective that higher and higher IP standards would be good for consumers in the north, with the north exporting IP to the south as users.

Musungu agreed, saying that the idea of northern countries having intellectual property as a comparative advantage does not take into account whether they preserve that advantage through the IP system.

Peter Drahos of the Australian National University said that it is important to distinguish between having a comparative advantage in innovation and exporting. It is “crazy” to think that one can institutionalize comparative advantage in innovation as this will move around, and therefore some countries cannot say that a certain set of rules will help any one in particular.

Susan Sell of George Washington University said that too much protection stifles innovation and is negative not only for consumers but also innovators. She said that while consumer groups had not been part of the Uruguay Round, now IP is no longer an “arcane technical issue” but about rights to food, education and medicines. She said the problem was not the TRIPS agreement per se but its application and the fact that developing countries are being pressured not to take advantage of its flexibilities.

Drahos talked about negative commons versus positive commons, with nobody owning anything but having the right to appropriate, or everyone is a joint owner but to appropriate one needs the consent of commons, respectively. He said one tends to forget that there is a lot of empirical evidence of positive commons with communities regulating and organising themselves.

Drahos also said that IP protection and benefits are not linear because as the innovation gets older, there is a peak point in gain, after which there will be a loss, thus at some points a patent does more harm in terms of economic gain.

Love said the meeting was about thinking in a more philosophical manner what the current IP debate is all about, referring to new rules for knowledge, considering what language was used, for example, such as “piracy” and “counterfeit” versus “access” and “sharing.” But interestingly, as the debate got more heated, participants used exactly these phrases.

After the morning debate, Jonathan Zuck of the Association for Competitive Technology said he felt like the “lamb invited to dinner” as he was a lobbyist representing the industry. He warned against a polarized debate in which substance was lost.

This work is licensed under a Creative Commons License. All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation.

21/3/2006, www.ip-watch.org

Experts: Intellectual Property Policy Not A Traditional Left-Right Political Issue

posted by Tove Iren S. Gerhardsen @ 12:46 pm

BRUSSELS - Intellectual property policy may not be divided along left-right political party lines, participants in a consumer-led conference here on the politics and ideology of intellectual property concluded yesterday.

On 20 March one of the debates on intellectual property and advocacy centred around software and patents. The two-day event is hosted by the Trans Atlantic Consumer Dialogue, a consultative forum of 65 consumer organisations from the European Union and United States. There are 70-100 participants including civil society groups, industry, academics and others (IPW, Access to Knowledge, 20 March 2006).

Sharon Bowles, a member of the European Parliament, talked about her experience in negotiating the software patent directive, which after a five-year debate was voted down last summer. She explained that methods have always been patentable but as software “as such” was not patentable in Europe, it was not clear what “as such” meant, and litigation was different in different countries.

Florian Müller, founder of NoSoftwarePatents.com, said that many assumed that people like him are the guys who “do not want to make money on what they invent.” But he pointed out that he has made a living from intellectual property by writing articles and publishing books that are copyrighted, and he has developed software.

That this is an “anti-IP movement” is thus a myth and is wrong, Müller said, adding that some people may have a broader agenda, but “I am very much pro-IP.”

Müller also talked about his experience with the EU software directive, saying that during the summer of 2004 a German questionnaire on software and patents sent to companies attracted 1,400 replies. But as the German government favoured software patents, the replies had not been analysed, he said.

Müller had then asked to review the answers, arguing that a partial review is better than no review, and found that while only about 30 replies related to free software movements, 98 percent of the companies were against software patents, he said.

Jonathan Zuck of the Association for Competitive Technology said he wants to start a positive campaign called “access to protection” for small and medium-sized enterprises, referring to discussions earlier during the day on the importance of rhetoric.

James Love, director of the Consumer Project on Technology, asked whether there should be different patents for software and medicines and questioned what he called a “religious belief in the patent system.” Love also asked what the prospects were for countries with low income to manage patent systems with software.

Zuck said that whenever a lot of people want access to products that are patented, a debate about the IP system occurs, noting that products such as the sewing machine and agricultural tools generated similar debates in the past.

IP Policy Left or Right?

One of the underlying philosophical questions of the global IP debate that the conference is shedding light on is whether the debate may be divided into a left-right political issue. This is not the case, the moderator of one session concluded.

Bruce Lehman of the Washington-based Akin Gump, Strauss Hauer & Feld agreed, using the software directive as an example as it had been supported by people from the Green Party as well as conservative People’s Party.

Declan McCullagh of CNET news service said that IP policy was indeed partisan in political terms, referring to digital copyrights in the US in particular. He showed how the entertainment industry gave money to the Democrats and not the Republicans. Morever, three of four heads of associations such as the Recording Industry Association of America are Democrats (except Chairman and CEO Mitch Bainwol). Zuck disagreed, saying it was an issue of correlation versus causation and that Hollywood artists just tend to be Democrats.

Lehman also said that in 1982, only IBM filed software patents as Microsoft was still in its infancy. He said it is difficult to see how the US software IP policy has been a mistake as “tremendous economic growth” has been “unleashed.” IP-based jobs have substituted the lost manufacturing jobs, Lehman said. “Our IP policy has been incredibly effective,” he said.

But the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in whose creation Lehman was involved, has been a “huge failure for the US,” he said. Lehman charged that while the US has kept its part of the bargain in terms of market access, the advanced developing countries have not.

Rufus Pollock of the Foundation for a Free Information Infrastructure (United Kingdom) said that IP policy is not divided along political party lines, noting that when the software directive was discussed there were cross-political splits even at the national level.

Instead, he said, intellectual property may be divided into roughly two camps: the rights holders and the general public, which both benefits from new work but also bears the cost and thus is the only group that has a balanced view. The problem, according to Pollock, is that the general public is poorly organised and poorly concentrated, as opposed to industry.

Pollock pointed out that 10-15 years ago when the TRIPS agreement was being discussed there was no public concern with intellectual property rights. But this is now starting to grow, and in 40 years, Pollock predicted, there will be an equivalent IP movement much as there is in the environment sector today with groups such as Greenpeace and Friends of the Earth. This would create “a far better balance” and “only be a good thing for all,” Pollock said.

Another view was offered by John Howkins of the Adelphi Charter, an initiative urging governments to change the global intellectual property scheme which they argue has shifted too much toward private interests at the expense of the public (IPW, IP Policies, 19 October 2005). Howkins talked about “political or government ignorance” when it comes to intellectual property. He said many politicians could not answer the question on what their country’s IP policy was in terms of objective and purpose, or whether it would be good for their countries to have an IP policy. Brazil, however, was very clear as it wants poverty reduction, he said.

Howkins used two examples of politicians’ lack of knowledge in the area. First, the proposed treaty on broadcasters’ rights under negotiation at the World Intellectual Property Organization, under which the provider of a webcast requires some rights to the film, he said. Howkins argued that if asked whether this treaty is good or bad, “no politician would know where to begin.”

Second, Howkins talked about the free trade agreements and referred to a 2004 study examining 109 bilateral agreements. The study found that the United States would earn $112 trillion over the next 15 years from these agreements while developing countries would lose $21 trillion, figures that he believes most ministers negotiating the agreements are unaware of.

The discussion also focused on access to medicines. David Hammerstein, a member of the European Parliament, said that the number of new medicines being developed is declining with only “me-too” medicines coming onto the market, which are medicines with small changes from existing ones often targeting a small group of patients at a high price. He said for the vast majority of people and diseases worldwide medicines are not being produced.

Lehman, who served in the Clinton administration, accused the Bush administration of a “total incompetency in executing its policy,” but he gave it credit for giving money in order to implement international agreements on access to medicines, which he said the Europeans have not done. The real issue now, he said, is to implement these agreements and “deliver antiretroviral medicines to people in need in developing countries.”

The supply of Roche’s anti-influenza drug, Tamiflu (oseltamivir) also was discussed. Lehman said that it is “just a fact” that if Roche is not able to provide a sufficient supply of Tamiflu and there is a need, a compulsory license will be issued in the United States “no matter who is president.” This, he said, also shows how IP policy is not political.

Some participants discussed the need for “respecting IP,” but Pollock said that he does not respect IP in the same way he does not respect his hammer or any other tool, and argued that this was a false analogy with property.

One participant pointed out that at the Group of Eight industrialised nations meeting in Germany next year, German Chancellor Angela Merkel has said she wants to make intellectual property a key point.

29/03/2006, Digital Civil Rights in Europe (EDRi)

TACD debate on the politics and ideology of intellectual property

www.edri.org/issues/node/view/852

Civil society groups from around the world met in Brussels 20/21 March to discuss the politics and ideology of intellectual property. Speakers included representatives from WIPO and the EU, former US Patent Commissioner Bruce Lehman, consumer and development campaigners and noted IP academics Peter Drahos and Susan Sell.

The conference tried to step back from immediate IP controversies and take a look at the rhetoric and politicking behind the framing of IP debates and legislation. Jamie Love set the tone for the meeting by looking at the loaded terms used by proponents and critics of stronger IP rights, contrasting positive language such as "innovation", "value" and "wealth creation" with negative descriptions such as "monopoly", "privilege" and "exploitation".

The practical politics of the recent software patent debate were laid out by pro-patent lobbyist Jonathan Zuck, anti-software patents campaigner Florian Muller and European Parliament member and patent attorney Sharon Bowles. Bowles complained that few involved in the debate understood even the definitions involved; many in the audience doubtless felt the same way! Bruce Lehman and Rufus Pollock described the pro-IP consensus that exists across mainstream US and EU political parties, which gave Green MEP David Hammerstein a chance to describe his party's lone stance that instead favours innovation and consumer rights.

The most notable comment of the conference came from Bruce Lehman. While head of intellectual property policy for President Clinton, he drove the creation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which embedded IP into global trade treaties. But Lehman now feels that TRIPS has been a "huge failure" for the US, providing US market access to developing countries that have not reciprocated with strong IP enforcement.

Europeans can only hope that those in the Commission and member state governments responsible for IP policy are listening to this gale of criticism of ever-stronger private property rights in ideas. Leonardo Cervera Navas of DG Internal Market said at the meeting that shorter copyright terms were politically unthinkable. The debate will only move forward once such blinkers are removed and we see evidence- rather than faith-based IP policy development.

20/03/2006, Blogzilla

Lehman: TRIPS was a mistake

http://dooooooom.blogspot.com/2006/03/lehman-trips-was-mistake.html

I'm attending a great meeting in Brussels on "The Politics and Ideology of Intellectual Property". We just had quite a newsflash from Bruce Lehman, President Clinton's head of intellectual property policy who was largely responsible for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Lehman now believes TRIPS has been a failure for the United States, because the WTO agreement in which it is included opened US markets to overseas manufactured goods and destroyed the US manufacturing industry. He feels that the US has kept its part of the TRIPS bargain, but that with 90% piracy in China, higher-end developing nations have not. In retrospect, he feels the US should instead have introduced labour and environmental standards into the WTO agreement so that jobs would not be lost in the US manufacturing sector to countries with few environmental standards and weak unions.

How exhilirating that Mr Lehman agrees with civil society IP experts across the developed and developing world!

UPDATE: Mr Lehman also feels that were there to be a penicillin-resistant anthrax outbreak in the US, a compulsory licence would be issued for Cipro like a shot were Bayer unable to meet demand. Shame that the EU has waived its right to use such compulsory licences even in public health emergencies. (Thanks, Manon!)

20/03/2006, Free Software Foundation of Europe

Discussion over intellectual monopoly rights at TACD's Brussels conference

Kartsen Gerloff

The consumer group organisation Trans-Atlantic Consumer Dialogue (TACD) has organised a really interesting conference in Brussels. Today and tomorrow, about 130 participants will listen to panels and discuss among themselves. Most of the attendants come from the reform-oriented side of the debate, but there are some traditionally minded patent and copyright attorneys as well. As they're asking their usual questions (though usually in a more constructive spirit than at WIPO), this is a nice training ground for debates.

In the opening panel, Peter Drahos (I highly recommend his excellent books gave an excellent presentation about the historical and intellectual background of the system of intellectual monopoly rights.

He explained the concept of negative and positive Commons: In the negative Commons, nothing is owned by anyone, but everyone is allowed to appropriate valuable assets. In the positive Commons, appropriating something requires the consent of all Commoners.

The oft-cited "Tragedy of the Commons", which Drahos criticised as "ahistorical", according to him really only refers to the negative Commons. Positive Commons have historically worked very well. In certain circumstances, they can administer resources much more efficiently than markets or government regulation.

During the morning panels, there were various presentations about the different aspects of the system of intellectual monopoly rights which are causing problems, above all the great power of the rightsholders lobby. Susan Sell of the George Washington University pointedly remarked: Intellectual property has been turned from servant (of public policy goals) into master".

There were many more interesting presentations, too many to summarise here. Philippe Aigrain laudably enough has his online here (.pdf, also as .lyx source). I'll do my best to keep up throughout the afternoon.

22/03/2006, The Politics and Ideology of Intellectual Property - A New Political Order

http://patentinglives.blogspot.com/2006/03/politics-and-ideology-of-intellectual.html
 

I've just returned from a 2 day meeting, organised by the Trans Atlantic Consumer Dialogue (TACD) (a coalition of 65 EU and US consumer organisations), staged in Brussels. The meeting was a very full and provocative event and a valuable demonstration of the motivation and engagement of civil society on intellectual property issues and development. Indeed, it demonstrated the ever increasing importance of civil society in international norm setting, and the undeniable importance of "consumers" (indeed, producers in their own right) as stakeholders in international intellectual property law debate.

Significantly, the 2 days were a rich and diverse mix of perspectives, interests, and backgrounds, and included papers from Bruce Lehman (pictured at left), Senior Counsel with Akin Gump Strauss Hauer & Feld, and Chairman of the International Intellectual Property Institute IIIPI), a non-profit think tank and development organization located in Washington, D.C. From August 1993 through December 1998, Lehman served as Assistant Secretary of Commerce and Commissioner of the USPTO. As the Clinton Administration's primary representative for intellectual property rights protection, Lehman was involved in the negotiations leading to the TRIPS Agreement and the 1996 WIPO Copyright Treaties. Lehman made possibly one of the most highly blogged statements of recent days, saying "the TRIPS Agreement has been a huge failure for the United States," because in doing so the US agreed to provide market access to other countries with a comparative advantage on wages and the result has been that products are no longer manufactured in the US. Lehman maintained that it would have been preferable to have introduced labour and environmental standards into the agreement. "If anyone thinks this was a huge success for the United States they are 100% wrong."

In the final panel, Ed Mierzwinski (pictured at right), of Public Interest Research Groups PIRG, said that "the first message is that the old political model of the IP political economy is over" as is the model of creative process: "We have to protect the internet because it is the best opportunity we have to democratise information, protect diversity of culture, and ensure balance that's fair to all peoples of the world." Peter Drahos paraphrased John Stuart Mill, saying it was time "to allow for experiments in property." This, he said, was the key to recognising diversity rather than assuming that harmonisation is the only way to economic growth.

This was yet another brilliant event organised by TACD, in the tradition of the historic Future of WIPO Conference in Geneva in 2004. The indefatigable Jamie Love, Manon Ress, Ed Mierzwinski, Jill Johnstone, Ben Wallis, and a host of others should be congratulated for making these opportunities practical realities. As should every delegate in what was not only an invaluable but also a hugely motivating and engaging 2 days.

Make way for the new order.

21/03/2006, EU Copyright Directive review:  Bernt Hugenholtz to lead

http://downontheriver.blogspot.com/2006/03/eu-copyright-directive-reviewbernt_21.html

Michelle Childs

I am at the TACD conference on the politics and ideology of intellectual property http://www.tacd.org/docs/?id=286

There have been a number of lively and thought provoking sessions. See below for a blog on each of the sessions. There will also be an official report on the TACD website after the event.

We have just heard from Leonardo Cervera Nava (LCN) an Administrator in the Copyright and Knowledge- based Economy section of DG Internal Market.

He gave a helpful overview of the Commissions approach to access to knowledge. A number of interesting points came out of this. First in relation to the Commission's review of the Copyright Directive, due this year. Originally it was to be a review only of implementation, but now it will be an evaluation review of the Directive i.e an evaluation of whether or not has it achieved its policy objectives. This is an important change. The most recent evaluation report from DG Internal Market, on the Database Directive, was the first evaluation of an IP right based on evidence rather than rhetoric. It found that granting increased rights to database owners had not achieved its policy aims of increasing EU competitiveness against the US, in fact the reverse.

LCN confirmed that they would adopt the same approach to the evaluation of the Copyright Directive. Initial signs are encouraging, as the terms of the tender for the initial evaluation are broad: the study must include a review of the contribution of copyright to knowledge economy, the role of consumers, the way Member States have transposed exceptions and limitations in the Directive into national legislation ( an increasingly controversial issue as the current disputes in France over their implementation of the Copyright Directive show .) It will also look at technical protecion measures (TPMs) and generally any difficulties that arise for right holders, commercial users, consumers ,scientific and academic users and libraries

The initial evaluation will be undertaken by Professor Bernt Hugenholtz , a well known expert in this area, who has written extensively on the Directive, including some of the problems with it.

LCN also discussed two other Commission initiatives. First the proposal to review the Term Directive , in the face of industry pressure to extend the term of copyright protection. DG Internal Market will provide an impact assessment at the end of the year.

Second in relation to the proposal to create a European Digital Library . This is being taken forward by another DG, DG Info Soc, who have recently completed a public consultation. The primrary purpose of this proposal, is cultural, to fight rise of the ' Americanization' of EU culture. In reality a response to Google's plans in this area. While its a cultural project, its clear that concerns over copyright are increasingly dominating the debate.

DG Int Market is 'advising' DG InfoSoc. What are they saying? In short, only move ahead with the the copyright right holders agreement, and that there are no real problems with the law.

There are three main concerns that DG InfoSoc is looking at:

-On line access- How can EU citizens be given access to their culture on line? DG Int Mart recommends that if the material is subject to copyright, this material should only be used with the consent of copyright owners. No apparent mention of the use of exceptions in the law.

-What content should be digitized?- DG Mart encourages the focus to be on public domain materials.

- How can material be preserved and stored?. One of the issues is the use of TPMs. DG Mrkt considers that current legislation allows for sufficient flexibility to allow institutions to preserve such artifacts. Most library groups are concerned that it may not.

The significance of the copyright issues is shown by the fact that first meeting of the High Level group on digital libraries set up by DG Info Commissioner Reding, due to take place next week, is entirely devoted to copyright issues

It is to be hoped that the evaluation of the Copyright Directive will also look at this issue too.

The final comments where on the proposed Broadcasting and Web casting Treaty being discussed at WIPO. LCN caveatted his comments, that he is not the person responsible for this issue within DG Int Mrkt. He did confirm however that the Commission has carried out an assessment of the proposal ( though this has not been made public)which has been discussed with Member States . It is a very controversial issue. The EU's original position was to be against web casting, but they are under strong pressure from WIPO to reach agreement on this Treaty. The key block for the EU is the need to try and find an agreement that would be acceptable to the US. For the US web casting is a deal breaker for the Treaty.

21/03/2006, The debate on software patents as a litmus test for the knowledge society

http://www.heise.de/newsticker/meldung/71069 (in German)

Die Debatte um Softwarepatente als Lackmus-Test für die Wissensgesellschaft

Die Politik und die Ideologie des geistigen Eigentums lassen sich an der Debatte um Softwarepatente trefflich nachvollziehen. Dies zeigte sich am Montagnachmittag auf der Verbraucherschutzkonferenz im Rahmen des Trans Atlantic Consumer Dialogue (TACD) in Brüssel, die sich der Erörterung dieses noch wenig erforschten Themenfelds widmet. Kritiker stellten Monopolansprüche auf Computerprogramme dort als Beweis einer Bankrotterklärung des Patentsystems dar. Die Befürworter einer weiten Fassung gewerblicher Schutzrechte bezeichneten Softwarepatente dagegen als Waffen kleiner Firmen im Konkurrenzkampf mit Konzernen.

Eine gewisse "Schrillheit" habe in der Lobbyschlacht um die Softwarepatent-Richtlinie der EU die eigentlich wichtigen Dinge vernebelt, beklagte Jonathan Zuck, Direktor der Association for Competitive Technology (ACT). Ihn stört vor allem, dass die Auseinandersetzung häufig als Streit zwischen kleinen und großen Firmen dargestellt wurde. Auch im Mittelstand gebe es schließlich zahlreiche Befürworter eines breiten Patentschutzes für Computerprogramme. Man müsse aber unterscheiden zwischen kleinen Unternehmen, die wirklich innovative Software-Anwendungen hervorbringen, und solchen, die Software implementieren. Dazu seien die Medien oft "zu faul" gewesen, sodass sie die Schutzansprüche der ersten Gruppe ignoriert hätten. Seine Differenzierung hielt Zuck aber nicht lange durch, da er allgemein betonte, dass gewerbliche Schutzrechte den Kleinen in die Hände spielen würden. Dies hindere ihn aber nicht daran, auch mit Geld von Konzernen wie Microsoft oder Oracle Lobbying für Softwarepatente zu machen.

Gerade das US-Patentsystem leistet mit seiner Freigabe alles Menschengeschaffenen für den gewerblichen Rechtsschutz auch "Patent-Trollen" ohne eigene Produktionsabsichten Vorschub. Dies verheimlichte Bruce Lehman, langjähriger Berater der Clinton-Regierung in Fragen des geistigen Eigentums, unter Verweis auf den Fall NTP vs. den Blackberry-Hersteller RIM erst gar nicht. Generell seien meist Konzerne die Angeklagten in großen juristischen Patentfehden. Dies erfordere aber keine substanziellen Änderungen in den Softwarepatentgesetzen der USA, sondern allenfalls die Abmilderung der Möglichkeit zu Unterlassungsklagen. Wie man angesichts des Booms des Silicon Valley und der Schlagkraft der US-Softwareindustrie erkennen könne, habe die Möglichkeit der Patentierbarkeit von Programmcode und Geschäftsmodellen der Wirtschaft bislang nicht geschadet.

Für den grünen EU-Abgeordneten David Hammerstein zeigt die Geburt der Patent-Trolle dagegen, "dass das gegenwärtige Situation im Patentsystem nicht mehr aufrecht zu halten ist und mit Innovation und gesellschaftlichen Bedürfnissen nichts mehr zu tun hat". Die Softwarepatent-Debatte müsste daher "als Sprungbrett für eine viel größere Diskussion über die Wissensallmende dienen und mehr Offenheit in die gesamte Wirtschaft bringen". Keinen Zweifel, dass ein Umschwung bei der Einschätzung des geistigen Eigentums und dessen ständiger Ausweitung im Gange ist, hat auch Rufus Pollock vom Förderverein für eine freie informationelle Infrastruktur (FFII). Der Widerstand werde in ein paar Jahren die gleiche Größe haben wie heute die Umweltschutzbewegung.

Für problematisch beim bisherigen Lobbying gegen Softwarepatente erklärte Florian Müller, Gründer der Kampagne NoSoftwarePatents.com, die Tatsache, dass viele Mittelständler trotz ihrer Ablehnung einer Ausweitung des Patentsystems in Europa die Arbeit etwa der Open-Source-Bewegung überlassen habe und so ein falsches Bild von der Gegnerschaft entstanden sei. Die beste Chance für den Mittelstand, mit den Großen zu konkurrieren, stellt seiner Ansicht nach nicht der Patentschutz, sondern die für neue Geschäftsmodelle offene Internetarchitektur dar.

Im Prinzip keine Probleme mit Softwarepatenten hat die liberale EU-Parlamentariern Sharon Bowles. Ihr ist es nur wichtig, dass "mathematische Formeln" nicht mit Monopolansprüchen belegt werden. Ein Problem des Systems sei es aber, gab die Patentanwältin zu, dass auch Konzerne mit großen Rechtsabteilung bei der Entwicklung neuer Lösungen selbst beim gründlichen Suchen in Patentdatenbanken Möglichkeiten zur Verletzung bereits bestehender Schutzansprüche nicht mehr ausschließen könnten. "Vergessen Sie das", erklärte sie den Zuhörern, "das kostet Sie mehr als die Beantragung eines eigenen Patents." Dies wäre generell der billigste Weg, um eine gute Patentrecherche zu erhalten. Bowles Tipp: "Werfen sie die Sachen den Prüfern zu." Das Patentwesen selbst müsse aber "voranschreiten".

Die zu Tage tretenden Kollateralschäden des gegenwärtigen Patentsystems zeigen für James Love vom Consumer Project on Technology dagegen, dass dessen Befürworter in religiösem Eifer befangen sind. Dass die EU sogar strafrechtliche Konsequenzen für Patentverletzer erwägt, spreche für den Zusammenbruch des Systems. Nicht weniger besorgt zeigte sich Love, dass die EU-Mitgliedsstaaten selbst bei einem akuten Ausbruch der Vogelgrippe beim Menschen keine Zwangslizenzen für die Herstellung von Bekämpfungsmitteln wie Tamiflu vergeben dürften. "Werden wir alle aus Liebe zum Patentsystem sterben?", lautete seine provokative Frage.

Zu den Auseinandersetzungen um Softwarepatente in Europa und die EU-Richtlinie zur Patentierbarkeit "computer-implementierter Erfindungen" siehe den Artikel auf c't aktuell (mit Linkliste zu den wichtigsten Artikeln aus der Berichterstattung auf heise online und zu den aktuellen Meldungen).