1.1 Do you agree that these are the basic features required of the patent system?

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1 Hi, I'm in charge of software development for a computer software business. I'd like to put forward my company's position on patents in response to your Questionnaire on the Patent System in Europe. 1.1 Do you agree that these are the basic features required of the patent system? The patent system should encourage innovation and stimulate increased economic activity. In some areas the patent system seems to work; in other areas it may be very counter-productive. 1.2 Are there other features that you consider important? The important feature is that patents are not considered an end in themselves. They must be considered as part of a wider innovation strategy. The patent system should be constantly tested against that strategy to ensure that it contributes towards the overall objectives. 1.3 How can the Community better take into account the broader public interest in developing its policy on patents? The current system of patents is great for patent lawyers and not so good for everyone else. To bring patents in line with the broader public interest: o The patent system should be brought under the control of the democratic institutions in the EU; o Patent policy should be developed with EU economic objectives in mind, rather than the objectives of patent lawyers and corporations; o Ensure that the patent proposals are debated in the European Parliament; o Adopt the core amendments made by the European Parliament to the last European Patent Directive. 2.1 By comparison with the common political approach, are there any alternative or additional features that you believe an effective Community patent system should offer? At the moment the EPO has executive, legislative and judicial powers over patents. This should be split over separate organisations so that balance can be achieved. 3.1 What advantages and disadvantages do you think that pan-european litigation arrangements as set out in the draft EPLA would have for those who use and are affected by patents? With good patents, granted in line with an overall innovation policy, the impact would be positive. However, under the current arrangements and proposals the result would be catastrophic for my company. It would be hard to continue in business. 3.2 Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in your view would be the ideal patent litigation scheme in Europe? At a minimum, the patent litigation must be in a court independent of the Patent Office - judicial independence is a basic requirement of any

2 justice system. 4.1 What aspects of patent law do you feel give rise to barriers to free movement or distortion of competition because of differences in law or its application in practice between Member States? Due to the cost of patent searches and legal advice, any change in patent applicability between Member States gives rise to a distortion of competition. 4.2 To what extent is your business affected by such differences? Determining what is legal in any country is very expensive. If there is a significant chance that patents might apply to general software such as ours in that country then we cannot do business in that country. If we should do business in that country then we would be exposed to significant and unmanageable risk. I have not been able to find any insurance to cover this risk. 4.3 What are your views on the value-added and feasibility of the different options (1)? (3) outlined above? The most important criterion is the "subject matter" and this is missing from the list. It is on the basis of "subject matter" that the EPO has already granted software and business patents. 4.4 Are there any alternative proposals that the Commission might consider? None that I am aware of. 5.1 How important is the patent system in Europe compared to other areas of legislation affecting your business? Without software patents: 1. With software patents: 10. Continuing in business will require large expenditure on lawyers fees to ensure we do not infringe patents and in dealing with any infringement claims that arise. It would be hard to stay in business in such an environment. 5.2 Compared to the other areas of intellectual property such as trade marks, designs, plant variety rights, copyright and related rights, how important is the patent system in Europe? For software; when software cannot be patented: 1. Software is controlled by trademarks and copyright. These are easy to use, cheap and largely transparent. Patents are expensive and require searches to determine infringement so are not transparent at all. 5.3 How important to you is the patent system in Europe compared to the patent system worldwide? Without software patents: 1 We use copyright to protect our product and trademarks to protect our reputation. These are the perfect systems for us.

3 It is vital to the survival of our business that software patents are not implemented in Europe. 5.4 If you are responding as an SME, how do you make use of patents now and how do you expect to use them in future? What problems have you encountered using the existing patent system? Answer: 1. We do not seek patents. As described above, copyright and trademarks provide sufficient protection. If software patents were introduced and we survived, we might be forced to seek patents as a defensive strategy. However, we would avoid doing this where-ever possible as the cost would be high and, in the end, it would benefit nobody. 5.5 Are there other issues than those in this paper you feel the Commission should address in relation to the patent system? Answer: 10 The key issues are not documented in the questionnaire. Patents must be considered as part of an overall innovation strategy. Patents are not the only tool. Far too often, the case for patents is put by well-funded lobby groups, ignoring the concerns of small companies trying to innovate and meet customer demand. I attended one of the UK Patent Office's workshops on the previous patent directive. At the end the chair asked for a show of hands, for and against patents. All the hands in favour were from patent lawyers. All the people representing engineering or software companies were in favour of abolishing patents entirely. Software patents would cripple the EUs software development business. Such development would move offshore to countries where patent issues were less pressing. Software is already protected by copyright. One purpose of a patent is to reveal all details of the invention so as to discourage trade secrets and thus encourage competition once the patent expires. This is not possible with software patents - the source code is not available, is hard to re-create and is covered by copyright anyway. The patent office must be controlled by democratic institutions and use a separate judiciary. A patent office that acts as its own judiciary cannot be just. The objective of a patent system is to produce "good" patents. This objective is not discussed in your questionnaire. What defines "good"? How will this be measured? How are the rules protected by those that seek to change or work around the rules in their own interest? Given the level of money involved in patents, how does the system avoid being hijacked by vested interests? How is the problem of "patent piracy", now becoming a serious problem in the USA, to be avoided in the EU? (1) If you would like the Commission to be able to contact you to clarify your comments, please enter your contact details.

4 (a) Are you replying as a citizen / individual or on behalf of an organisation? On behalf of 3BView Limited. (b) The name of your organisation/contact person: Dr Martin Brown. (c) Your address: martin.brown@3bview.com (d) Your postal address: 10 Hillside Cottage, Soot Hill Anderton, Northwich, CW9 6AA, UK (e) Your organisation?s website (if available): (2) Please help us understand the range of stakeholders by providing the following information: (a) In which Member State do you reside / are your activities principally located? UK (b) Are you involved in cross-border activity? Yes. We sell via the internet so we are potentially world-wide. (c) If you are a company: how many employees do you have? 2 at present; we hope to expand in the very near future. (d) What is your area of activity? Computer software development. Our products remove meta-data such as track changes in MS-Word documents as they pass through the server. (e) Do you own any patents? If yes, how many? Are they national / European patents? We do not own patents; we rely on copyright. (f) Do you license your patents? N/A (g) Are you a patent licensee? No. (h) Have you been involved in a patent dispute?

5 No. (i) Do you have any other experience with the patent system in Europe? No. -- Dr Martin W Brown web: martin.brown@3bview.com phone: +44 (0) Are your s 3BClean?