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Software patents: will Europe roll over for the multinationals?

Battlelines are being drawn up, and it's too close to call

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Analysis 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.

The ultimate absurdity is that it is impossible to determine if a program falls foul of some software patent, because it is impossible to create an intellectual framework that allows such checking. With nonsense patents having been granted for the EXCLUSIVE OR and one-click ordering, there is no hope of reforming or rationalising existing software patents: they need to be declared invalid.

The patent power play

In the past, the national patent bodies and the EPO have had little supervision and have not previously been the focus of political machinations: they have tended to be something of a graveyard for civil servants and a rather boring place to work. The performance of patent examiners is generally assessed on how many patents they approve, rather than turn down. What is now happening is that these bodies are trying to expand their domain in a play for more power and more money. The EPO and national patent bodies are being encouraged by big multinationals, especially IBM and Cisco, who are lobbying intensively to burn software patents into EPO law.

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 ®

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