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Difference between revisions of "ACTA and software patents"

(The versions of the text after October 2010 create much fewer problems regarding patents.)
(==ACTA does not make software patentable== Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not. The text states this explicitly: <blockquote> A)
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The versions of the text after October 2010 create much fewer problems regarding patents.
 
The versions of the text after October 2010 create much fewer problems regarding patents.
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==ACTA does not make software patentable==
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 +
Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not.  The text states this explicitly:
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<blockquote>
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ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF
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INTELLECTUAL PROPERTY RIGHTS<br />
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1. This Agreement shall be without prejudice to provisions governing the
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availability, acquisition, scope, and maintenance of intellectual property rights
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contained in a Party’s law.<br />
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2. This Agreement does not create any obligation on a Party to apply measures
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where a right in intellectual property is not protected under the laws and regulations of
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that Party.<ref>Page 3 of the 15 Nov 2010 text</ref>
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</blockquote>
  
 
==ACTA ''does'' modify patent law==
 
==ACTA ''does'' modify patent law==

Revision as of 08:38, 16 November 2010

Can you help? This needs to be reviewed in light of the November 2010 publication of the proposed-final text


ACTA is an international treaty which could create new patent liability for software distributors (including ISPs and other intermediaries) and gives new powers for patent holders.

The versions of the text after October 2010 create much fewer problems regarding patents.

ACTA does not make software patentable

Just to be clear: there is nothing in ACTA which will change whether software ideas are patentable or not. The text states this explicitly:

ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS
1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law.
2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party.[1]

ACTA does modify patent law

Politicians who try to justify ACTA usually make the irrelevant, distracting comment that the treaty does not change substantive patent law. While it is true that the text may not require changes to the text of a country's patent law, it does change issues of liability and enforcement which will greatly change how patent law applies to developers.

Broader liability

ACTA creates liability for Internet service providers, for websites that provide support, and for distributors of anything that could violate a patent. This means that patent holders can choose to target software developers directly (as is possible today) or, with ACTA, to target the other entities in the distribution chain.

This doesn't increase the danger for the software developer, but it increases the chances that the patent holder will be able to block the software from achieving its goal: being used.

Inducing self-censorship

By making the penalties severe, ISPs and other software distributors will consider policing their networks. You could thus find that the ISPs would remove a project for patent infringement, even if the patent holder hadn't signalled a problem.

Cease-and-desist letters

ACTA contains a lot of language about harsher punishment for "knowingly infringing". This is an idea copied from the USA, by which a patent holder has the power to change the potential punishment from normal to harsher by sending a notification "cease-and-desist" letter. Thus, if "infringement" is ever proven, the act becomes "knowingly infringing". Many ISPs in the USA obey these letters without any investigation because they don't want to leave themselves open to the harsher punishment. With this, patent holders could remove software packages from circulation even without going to court.

Related pages on ESP Wiki

The two big leaks so far are both of the January 18th, 2010 text:

External links

  • Page 3 of the 15 Nov 2010 text