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A crucial point since to put in danger small and average editors amounts
threatening French industry of the very whole software. According to a
report/ratio of the general Police station of the Plan going back to
2002, the economy of the software in the Hexagon is contingent
essentially on small structures. Thus, 58 % of the 28 500 companies of
the sector count two employees to the maximum. However, to deposit,
maintain patents and to ensure the technological survey of this system
appear completely out of reach large majority of the editors. "For the
only French territory, the deposit of a patent can be more expensive
than the development of the innovation itself, notices Jean-Marc Bily,
of Prologue. Moreover, one patent does not protect a depositor
implicitly.For the costs of the deposit and study of anteriority, it is
necessary to add a monitoring on the new patents and the products which
leave. And, in the event of litigation, to pay the court expenses. It is
an unusable system by the near total of the editors." Eric Schahl, of
the cabinet Inlex, figure at a cost varying of 12 000 to 30 000 euros
the only search for anteriority, procedure which requires complex
research in the data bases of patents and the expertise of an engineer.
He estimates that a European, valid patent in eight Member States, costs
of 50 000 to 100 000 euros on the whole. Because, contrary to the
royalty, which protects from the copy from the sources and has an
international significance, a patent applies to a territory for one
twenty years duration. To extend it to another country, it is necessary
to discharge new rights of deposit, without speaking about the expenses
of translation.

However, following the decision taken at the beginning of March by the
Member States of the European Union, this system must be simplified with
the nearest arrival of the community patent. If SME criticize the
heaviness of the setting in?uvre, they fear before all the legal risks
which could be born from the patentability. And the experiment of the
United States is not made to reassure them. Thus Pierre Haren tells that
the American subsidiary company of Ilog has several times received of
the injunctions of companies claiming of the royalties on the faith of
patents, threats which it could push back contrary to other companies
which "leave racketter". "It is necessary to avoid the excesses noted in
the United States, like the small companies crushed by the weight of the
royalties", increases Herve Laumonier, of One2team, however favorable to
the patentability. Thus, according to a licence agreement which we could
consult, bearing contract on two algorithms of compression of images
(GIF-lzw and tiff-lzw) whose patents are held by Unisys, to integrate
these standards into a software costs to its author 1,1 % of his total
incomes. To refuse to pay these royalties leads to a payment in front of
justice. According to a report/ratio of the American Association of the
patent rights, going back to 1999, the average cost of a lawsuit
followed by a call amounts to 1,5 million dollars for each part. To
conclude a transaction involves a median cost of 800 000 dollars.

This legal insecurity largely seems to depend on the fact that Pierre
Haren calls "the frivolous patents", of protections covering of false
innovations, so much they are obvious, or of the innovations already
being the subject of a former patent. Without speaking about the patents
relating to businesses methods, in other words methods of businesses,
protection recognized on the other side of the Atlantic. Famous example:
the electronic purchase in a clic deposited by Amazon. These frivolous
patents, accepted without too many difficulties by the American Office
of the patents, are used as currency of exchange at the time of an
attack by a competitor (strategy of defensive intellectual property) or
to threaten a too pressing competitor (the patent becomes then arms
offensive). In the majority of the cases, the parts agree on a financial
transaction. The difficulty? "This system forces the editors to develop
a wallet of patents to tie alliances, to carry out licensing agreements
crossed to avoid the lawsuits. But only the giants can take part in this
play!" carry yourself Sylvain Perchaud, president d' Europe Shareware,
association of promotion of the authors of sharewares created three
years ago.


Machine to be generated cash

Conversely, for the great groups, the system of the patents seems a
financial basket, an activity with very strong margin. It is enough for
example to consider the accounts of Thomson to have confirmation of it.
Thus, if the sales turnover of division Patents and Licences (429
million euros) weighs only 4 % of the incomes of the group in 2002, the
activity represents more half of the turnover (387 out of 718 million
euros). A machine with cash which interests many multinationals: at the
end of February, HP thus announced its intention to release more profits
with its wallet of patents. For these large companies, interest of an
alignment of the European practices, therefore the recognition of the
patents of software or patents relating to methods of businesses, on the
American or Japanese system appears obvious.

Actually, a good part of the way was already accomplished. The adoption
of the directive would make jump the last bolt. Indeed, being engulfed
in the faults left by the blur of the texts, which were satisfied to
prohibit the patentability of the software "as such" (see framed), of
many companies patents deposited relating to software, thanks to astute
draftings of the documents at the time of the deposit with the OEB. One
estimates thus that 30 000 patents relating to inventions "implemented
by computers", covering in the majority of the cases of the software,
were accepted right now by the OEB, 75 % emanating of nonEuropean
companies. Approximately 6 % of the some 110 000 annual patent
applications received by the organization milked with data processing.
In a number of patents of software deposited in 2002, the five most
active companies were Matsushita, Microsoft, Sony, Siemens and Sun.
"most of our American patents were already deposited in Europe, without
difficulties", confirms Olivier Ezratty thus, of Microsoft, which
ensures that the editor is satisfied as regards intellectual property
with a defensive strategy. According to the director of Net division and
developers, the principal defenders of the patentability of the software
at the European Commission would be the large European companies. Not
American editors.

A thesis which nevertheless Sylvain Perchaud refutes, of Shareware
Europe: "the American editors very patented, to start with the
algorithms founders. This directive thus endangers the European
economy." A conclusion to which also the report/ratio of the general
Police station of the Plan arrives, which sees in an abrupt decision of
extension of the patentability to the software "of the real dangers to
European industry, because of the considerable imbalance which exists
between the United States and Europe on the matter." Before being done
even more precise: "Only the armed peace which pre is currently worth,
precisely because of legal uncertainty which surrounds the concept of
patent of software, explains indeed why the existing patents [ 30 000
deposited with the OEB, note ] are not more frequently used."

The fear of a multiplication of the dispute

Because it is well what SME of the edition fear: to see, once the
adopted directive, to multiply the ruinous dispute on the questions of
patent rights. A risk quite real bus, according to Sylvain Perchaud:
"Any software violates several tens of patents. To detect these
conflicts, to contact the whole of the holders of these patents and to
negotiate with them can take two years." Pierre Haren, of Ilog, shares
these concerns: "If the directive is adopted in the state, numbers
French companies are in danger. It will be enough to translate the
American patents into Europe to attack the French software firms, or
their fortunate customers, on the majority of the specific
developments."

Among all the consulted French positions, only the French group of the
International association for the protection of the patent rights
(AIPPI) evoked at the end of 2000 of "overall exaggerated" concerns. For
this organization joining together councils, lawyers and industrialists,
"protection by patent is likely to ensure these small and medium-sized
undertakings a more equitable position on the market of information
technologies". Then patent or royalty? For some, the terms of the debate
miss imagination. Thus, Jean-Marc Bily, of Prologue, would like to see
being born a right specific to the software: "One imagines nothing other
but to make pass the software of an unsuited category, the royalty, with
another, who poses new problems. One would need a reflexion on the true
nature of the software." A task obviously a little too ambitious with
the eyes of the European Commission. With the great joy of the holders
of wallets of patents.


Self-criticism in the United States

The American Office of the patents (USPTO, United States Obvious and
Trademark Office) is "in crisis and that will be worsening" (Los Angeles
Times of February 7, 2003). This severe judgement is not due to an
activist Open Source, but to the director even of the office, a former
republican member of the Congress, James Rogan. It testifies to the
extent of the crisis that crosses the American system, in particular
because of the patents on methods of businesses accepted since 1998.
Policy fault of solution to the debate at the beginning of the years
1990, the evolution of the practice on the other side of the Atlantic
was based on the decisions of court (in particular of the federal Court
of Appeal) and on those of the American Office of the patents. An
evolution in the direction of permissiveness. Even if the patents on the
methods of businesses are less easily accepted today? "one passed from a
rate of acceptance of 75 % to a percentage of rejection of 75 %",
according to James Rogan?, remain to manage existing it. And, in a
report/ratio of February 2001, Lemley Mark, professor of right of the
intellectual property to the university of Berkeley, record complexity
of the situation: the rejection by the Office of the "bad" patents would
cost, according to its estimates, expensive with the community than the
current procession of lawsuit and informal agreements. From where the
council of Lawrence Lessig, professor of right to Stanford: "Rather than
to copy an American legislation which failed, Europeans could explore
alternatives, alternatives which would offer a protection without
threatening the supposed recipients of this regulation."


 
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