January 25, 2006

European software patent fight is on again

Author: Jay Lyman

Opponents of software patents in Europe knew this summer's overwhelming European Parliament vote against a patent directive was not the end of the fight. They are now gearing up for another round, as pro-patent lobbyists come out of their corner swinging.

Still leading the fight against the kind of broad patentability that has plagued the US, software developer and NoSoftwarePatents.com founder Florian Mueller is warning of the "back door" effort to establish a stronger legal basis for software patents across Europe. Mueller and other European patent opponents are launching another Web campaign to rally support against the EU-wide community patent sought by the likes of SAP, Microsoft, and other major software companies.

The reason for the renewed effort, Mueller told NewsForge, is the push by EU internal market commissioner Charlie McCreevy and other European patent supporters to use the European Patent Office (EPO) and its case law to slip stronger software patent support into law. Mueller expressed particular concern over the European Commission's announcement of consultations with industry lobbyists.

"Consultations like this are the routine way for the Commission to start a new legislative process," Mueller said. "They claim that everything is possible after the consultations, but in reality they have some game plan in place anyway."

Mueller explained the idea of a European community patent is not necessarily the problem, but backers of European software patents may be jumping ahead to the detriment of open source software communities and innovation.

"We have to make sure they won't make the third step before the first and the second," he said. "The first step is to depart from the incorrect assumption that more patents are more innovation -- less is more. The second step is to exclude software from the scope of patentable subject matter because software patents do more harm than good on the bottom line, and there's empirical evidence that the software industry doesn't need patents. Microsoft had its first billion dollars in annual revenue at a time when it held only five patents, and SAP had very few patents until a few years ago.

"If there's going to be a community patent, then those problems should be addressed previously or simultaneously, but a promise to deal with them subsequently is unacceptable," Mueller said.

While the latest struggle is being described as a "final effort" for an EU-wide community patent, it is actually the third effort toward software patents for all of Europe, according to Mueller.

"They tried to change the European Patent Convention, which is a multinational treaty (not an EU treaty) from the 1970s and still applicable here, in 2000, and failed," he said. "They tried the EU software patent directive, and failed last year."

Despite the past victories against patents, the fear now is that EPO-approved patents, which amount to "bundles of national patents," may be broadened, despite findings and rulings against software patents in Germany, Poland, and more recently, the UK, according to Mueller.
He warned that those in favor of European software patents have learned from their past failures and will be improving their play book this time around.

"The pro-patent camp will fight harder and smarter, and we'll have to try to do so as well," he said. "We're the psychological winners of the last battle. Everyone claimed to be a winner after the European Parliament threw out the proposal, but the difference is that the others were jubilant about two weeks before because they won the preparatory vote in the Legal Affairs Committee and thought they'd get a law to their liking, while I had already proposed the rejection of that bill on March 7, 2005, after the EU Council (the institution in which the EU member states cast their votes) formally adopted that proposal as its 'common position,' which then went to the parliament and got rejected."

Mueller also stressed the need for continued corporate support from the entities that helped knock down the European patent directive last summer, including Red Hat, MySQL AB, and hosting firm 1&1.

"We certainly have to take serious action now in response to the Commission's consultation paper," he said. "The key question from my perspective is going to be how committed the companies which oppose software patents will be to the cause this time around. We will need a certain level of resources, and then we can win again."

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