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CEO of automotive technology SME grills Scania over software patents

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15 June 2005 - Early May, the European Enterprise Institute published an opinion paper written by a lawyer of Scania, arguing why software patents are so important for the automotive industry. Thomas Wuensche, CEO of an automation and automotive technology, wrote a letter to the author of this article asking him to explain his position and how the requirement of using controllable forces of nature could exclude automotive inventions. He did not get an answer.

The Scania paper recently got attention again due to a patent lobby event which the EEI is organising end June. Thomas Wuensche, CEO of an automotive technology SME and a supporter of the Economic Majority against software patents initiative, wrote a letter to Scania about it a while ago, but never received a reply.

Letter to Scania

Dear Mr. Egrelius,

I have read your opinion paper and have a few questions on it. I am owner and CEO of an automation and automotive technology company and in this function have strong sympathies for the results of the parliaments first reading. However I'm in fear that the Council's version would introduce severe risks for us, but also for companies like Scania.

Given that background, I would be interested to discuss the issue with you and would be glad if you'd find the time to do so.

First of all I'm with you with the conviction that engine control systems that result in enhanced effectivity and reduced fuel comsumption should as well be patentable as road safety systems that stabilise vehicles. The position of FFII also does not question that. However all those systems would be related to changes in the use of the forces of nature. The patentable invention in this case is how forces of nature are used. Software of course needs to be applicable in this case without harming patentability. However since the invention is in the use of the forces of nature, it would be sufficient to protect that, I don't expect that claims on the data processing algorithm are required. If you think that would not be patentable according to the parliaments first reading results or the amendment proposals made by FFII, could you please outline why you think so? If there is a new way to use forces of nature in an invention and the significant investments to achieve that could not be protected by patents according to these proposals, this surely needs to be discussed.

As far as the problems of the patent system are concerned, I have learned during my time as CEO of my company, that it's better to fix problems before you decide to depend on something that has problems with further tasks. The patent system needs to fix issues regarding the height of the inventive step and finding prior art. It's not the task of companies blocked by falsely granted patents to care about that. Do you think there are ways to improve that? If so, how could it be done?

One of the major problems to me seems the misleading name of the directive. The inventions you describe could all be called "Computer Aided Inventions", making clear that there is an invention (wrt forces of nature) that get's help from a computer. However "Computer Implemented" holds true only for something that can be implemented in a computer as a whole, and that is data processing only. Data processing is considered the main function of software by most persons outside the patent system (the EPO practice and examination guidelines draw a line between software and the data processing performed by it that is hardly understood by developers and does have no meaning besides making data processing patentable). Would you think the requirements of your company would be fulfilled if the directive allows "Computer Aided Inventions", but denies patents to pure data processing?

As far as the nickname of the directive is concerned: Have you read the examination guidelines of the EPO? Are you aware that they permit patents on business methods, as long as technical thoughts have been required while the invention is made? That in this case neither the problem nor the solution needs to be technical? Are you aware that the alternative requirement for technicity, the "additional technical effect", is declared not to be checked during patent examination? I can give sources to that information in case you don't have them. So why do you think the directive was not about software (in the sense most developers understand it, that means including the data processing coded in the software)?

Regarding the question whether the existing practice of the EPO has served European inventors: I don't think so. What has served European inventors is the fact that many courts have not followed the EPO practice. I'm sure this has also saved your company many millions in patent litigation costs. It's true that the Council's position confirms the EPO practice of granting patents to something that is considered pure software by most persons outside the patent system. The Council's position uses many of the phrases that can be found in the EPO examination guidelines and that's what makes it so dangerous to the innovative capabilities of Europe. Why do you think EPO practice has served us well, while I find that our apprentices regularly violate patents while coding pure software?

I'm looking forward to discussion of the matter with you. European high-tech industry sure needs a well thought directive on computer aided inventions.

Best Regards,

Dr.-Ing. Thomas Wuensche

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