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Software patents: the fight in Europe

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2004 in review Patents have been big news in 2004, with Microsoft appealing against the ruling that it owes Eolas hundreds of millions in licence fees, a move which has found it some unlikely allies. Meanwhile, the EU did its level best to pass a directive "clarifying" the legality of patenting software in Europe.

But in all the patent-related excitement, let us not forget SCO, and its (entirely self-inflicted) copyright dispute with IBM. As the year began, the legal to-ing and fro-ing over ownership of sections of Unix source code had been rumbling on for the better part of nine months already. By March 2004, we wondered aloud whether the end might be in sight. It was nowhere near.

The details of the case are well documented on Groklaw than anywhere else, but suffice it to say legal filings were in no short supply, and SCO found itself largely on the back foot.

One of the more interesting twists in the tale, however, was that of Groklaw itself. 2003 saw Pamela Jones establish the site as the online authority on the case. In 2004, her relentless pursuit of SCO provoked a significant response. SCO would launch a rival site, it said in mid-October, to tell its side of the story. CEO Darl McBride swore the site would be up by the beginning of November.

Website? What website?

Embarrassingly, soon after making its original announcement, SCO decided it wouldn't launch its pro-SCO site after all. As PJ said at the time: "Perhaps they decided they'd libeled me enough for one day."

However, SCO did not let up, and went on to suggest that PJ's work for Open Source Risk Management (OSRM) implied she believed there were substantial IP risks inherent in Linux. PJ was so enraged that she quit her post at OSRM so that SCO would not be able to use that relationship to spread more of what she called FUD.

They fought the law, but the law won

New legislation in Europe this year caused concern that media businesses would find themselves in a far more lawyer-driven environment. The EU's IP Enforcement directive was drafted to make it easier for law enforcement to go after large-scale, commercial counterfeiters. But it did so in terms that failed to distinguish between a lone filesharer, downloading one song on Kazaa, and a huge blackmarket operation with links to organised crime.

The draft was heavily criticised for its wooly definitions - it even failed to define what it meant by intellectual property rights - and the heavy duty weaponry it handed out to law enforcement. Under the terms of the new directive, someone photocopying pages in a library would be regarded as the same kind of criminal as a commercial-scale software pirate. Nonetheless, it was waved through by MEPs with barely a whisper in the mainstream press.

And another battle begins

Which leads on to the European Directive on software patents, or as they would prefer we call it: the Directive on Computer Implemented Inventions. Possibly even more contentious than the IP Enforcement direction, the notion of harmonising Europe's laws dealing with software patents has not been popular.

In 2003, the elected members of Europe's Parliament voted to toughen up the Irish presidency's draft directive dealing with software patents. But when they sent their draft to the Council of Ministers, the Ministers put big red lines through all their work. The utterly de-fanged directive emerged from behind closed doors looking a shadow of its former self.

Gone were the restrictions on patenting pure software; gone were the requirements that software involved in a patent had to support a physical process. Instead, the door was opened for direct patenting of programs, data structures and processes.

The battle was now well and truly joined. On one side, the UK Patent Office argued that the directive merely clarified the existing position. It said that the directive limited the scope of what could be patented and ruled out US-style business-method patents.

Not so, cried the anti-patent camp, in fact, quite the reverse. There was outrage in the open source camp. How could this happen? The presidency was slammed as undemocratic, and protests were mounted outside the EC's headquarters. Inside, Ministers acknowledged that there was little consensus on the directive's form, and rescheduled the vote to pass the bill, allowing more time for debate.

Some very small changes were subsequently made, and the bill was voted through by the slimmest of margins, after Germany changed its stance. There were dark mutterings about Germany's last-minute switch, with many onlookers suspecting some adroit political manoeuvring had taken place.

All that remained was for the bill to be formally adopted, and it would pass back to Parliament for a second reading. But in between times, there was the small matter of the European elections. Since the summer, the final vote of the directive has been delayed, time and time again.

A friendlier side of Microsoft? Nah...

The year saw its fair share of lawsuits too, mostly in the US. The biggest of the bunch is unquestionably Microsoft's challenge of the validity of Eolas' web browser patent. If the patent, covering a method for opening third-party applications within a browser, was upheld, the impact on the Net would be enormous. This made for some unlikely alliances, as Sir Tim "the web" Berners-Lee came out in support of Microsoft's position.

But let us not be too dazzled by this apparently uncharacteristic defence of online freedoms. Microsoft is, after all, behaving exactly as it always does: in its own best interests. Remember that this is the company with over 1500 patents pending review. It also felt moved to say that it could no longer "look the other way" when companies used its IP, and made a great fuss about its own indemnification program, as it continues its efforts to undermine open source as a viable business option.

Government challenge

The US did not see all the action: in the UK, the government actually challenged a European patent - covering an electronic registration system for schools - in court and won. It apparently sees no contradiction between its position on this issue, and its contrary stance on the EU directive... but we digress.

At least, it sort of won, in as much as it was able to show that some of the patent was invalid because it had been done before. The case is still ongoing, as Frontline, the patent holder, was granted leave to redraft its patent to avoid prior art.

The continuing dispute, along with contradictory advice from the Department for Education and Skills (DfES), left schools uncertain over whether they could be held liable for infringing on the patented technology. Again, we will have to wait and see what happens next.

Fortunately, in the midst of this dark and dismal year, there were a couple of bright spots. Firstly, the EFF launched a campaign to challenge what it regards as the ten worst software patents ever granted. Secondly, Laurence Lessig's Creative Commons launched in the UK, handing authors more control over the freedoms they grant to others who want to use their work. ®

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