[Random-bits] Grahn Lea: Software patents: will Europe roll over for the multinationals?

[James Love]

http://www.theregister.co.uk/content/1/13942.html


-- Software patents: will Europe roll over for the multinationals?
By: Graham Lea
Posted: 12/10/2000 at 13:38 GMT

Software patents could become the kiss-of-death for many software
developers, because it is becoming impossible to write a program without
a serious risk of falling foul of some patent - frequently, an
undeserved and opportunist one. The threat is also grave for many
smaller businesses in Europe. They could easily be threatened by
out-of-the-blue demands for patent licensing fees for their software, or
for some process on their Internet site.

At a well-attended meeting sponsored by French MEP Gilles Savary and
arranged by the Eurolinux Alliance at the European Parliament in
Brussels this week, attention was drawn to new moves in Europe to
legalise software patents. In Europe there exist two totally independent
bodies with responsibility for legal issues connected with patents: the
European Union set up by the Treaty of Rome and now having 15 members,
and the European Patent Office (EPO) set up by the Munich Convention and
having 19 members.

The EPO has granted more than 10,000 patents that include software,
despite it being clear that, at the moment, patents based on computer
programs are illegal in Europe.

For example, a patent is likely to be granted by the EPO if a relational
database is involved, whilst exactly the same process using a document
database would not receive a patent because it is deemed to be not
technical. Software patents also fly in the face of the 1991 EU software
directive. Unfortunately, software patents cannot easily be successfully
challenged at the EPO, not just because of the expense to the smaller
organisations who are likely to suffer from the enforcement of software
patents that should not have been granted, but because the EPO Boards of
Appeal are the same building in Munich, and they lunch together... In
the US (and Japan), software patents and patents on business processes
are being granted at an alarming rate, although they may be at odds with
the 1947 GATT treaty and the TRIPS agreement.

Legality in retrospect? Now the EPO wants to ensure that software
patents are made legal, and plans to revise the European Patent
Convention (EPC) at a diplomatic conference in Munich from 21 to 29
November. The EPO's legal sleight of hand is to claim that although
article 52 (2) (c) of the EPC says that "programs for computers... shall
not be regarded as inventions", with total disdain for any notion of
integrity the EPO argues that this was interpreted so that it "in no way
excludes appropriate protection for software-related inventions, i.e.
inventions whose subject matter consists of or includes a computer
program".

The ponderous EU, with three of the European Commission directorates
involved in the patents issue as well as the two co-legislators (the
European Parliament and the Council of Ministers) that superintend it,
has been threatening a directive (as European laws are called) on
software patents, but has been too slow and now accepts that its
directive will not appear until after the EPO meeting. The EU does have
a champion in enterprise and information society commissioner Erkki
Liikanen, who said in an email read at the Brussels meeting (yes, he
replies to his own email): "I am absolutely against the US patent
practice in this field" and is urging internal market commissioner Frits
Bolkestein to arrange a consultation about the EPO's plans.

The EPO is the close buddy of the multinationals, who see intellectual
property as being a source of income. With more than 60 per cent of
Europeans being employed in small and medium sized businesses (and also
accounting for 60 per cent of European GDP), the multinationals are
hoping to stifle creativity by filing patents on the fundamental
processes in computer programs. Their intention is to extract upfront
payments, licensing fees, and to set restrictive conditions (for
example, geographical limitation). Meanwhile, through cross-licensing
with other multinationals with large patent portfolios, they can protect
their own position.

   [snip]

A preliminary administrative EPO roll call has shown that the countries
wearing the white hats are the UK, France and Germany, who remarkably
have reversed their previous stance in the face of the mounting evidence
of harm to their economies if software patenting is approved by the EPO.
They are supported by Denmark, Italy, Portugal, Spain and Sweden in
calling for more time to study the issue. The guys wearing the black
hats and wanting software patents in Europe are Austria, Belgium,
Cyprus, Switzerland, Ireland, Liechtenstein, Monaco, Greece, and the
Netherlands, with Finland not having voted and new-member Turkey also
thought likely to be wearing a black hat. To change the EPC, a 75 per
cent majority is required, and each country, regardless of size, has one
vote. Questions need to be asked as to how much lobbying it took to get
Liechtenstein's vote, and why France didn't get the message across to
Monaco.

The issue has been elevated from a nice little earner for the
multinationals, patent lawyers and the fonctionnaires of the patents
issuers to an important political issue with fundamental consequences
for employment and software development. Although Eurolinux is to be
congratulated for drawing attention to the issue, it is something of far
more fundamental importance than the concerns of, for example, the 6,000
members (that's a lot) of the Skane Sjaelland Linux Group based in
Copenhagen. Software patents, when enforced - for that is the next stage
- will have a fundamental effect on software development and the use of
software by smaller organisations who cannot maintain a gang of patent
lawyers.

Software patents are also fundamentally against EU objectives decided at
the June Feira meeting, which declared support for European open
software initiatives and the promotion of open source software in the
public sector. It's also beginning to look as though enforced software
patents may be used as a way of countering the threat posed by the open
software movement, which is particularly ironic in view of the fact that
much of the fundamental software in the industry - BIND and SENDMAIL for
example - was via this route. Nor is this just a European issue: it is
of fundamental world-wide importance to all developers and users of
software who are concerned that their freedom is being usurped by
multinationals and their patent lawyers: they do not deserve to profit
from the work of those who have given their time and software
development expertise to the community.

Patents are a controlled grant of exemption from competition law, in
that they give a limited waiver from competition rules, and are intended
to protect the inventors of physical objects. But to suggest that
"distributing cooking recipes in a supermarket to generate more sales"
is patentable because computer can be involved in printing out the list
of ingredients is plain bonkers. Software is best protected through
copyright patent law, and if software patents are not de-legalised, it
will only be a matter of time before Bill Gates gets a patent on binary
code.