[DMCA-Activists] O'Reilly DevCenter: Perspective on Software Patents in Europe

[Seth Johnson]

> http://www.oreillynet.com/pub/a/network/2005/03/08/softwarepatents.html


Software Patents in the EU

A Perspective on the European Computer Implemented Inventions
Directive


by Edward Griffith-Jones, Tom Chance

03/08/2005


Bill Gates wrote, in his Challenges and Strategy memo of May 16,
1991
(http://www.bralyn.net/etext/literature/bill.gates/challenges-strategy.txt),
that "If people had understood how patents would be granted when
most of today's ideas were invented and had taken out patents,
the industry would be at a complete standstill today. The
solution to this is patent exchanges with large companies and
patenting as much as we can." Microsoft has since filed thousands
of patents both in the European Union and in the U.S.
(http://swpat.ffii.org/gasnu/microsoft/index.en.html).

Whereas software patents are, unfortunately, legal in the U.S.,
they still have very questionable validity in Europe. Though
they're not legally enforceable, over 30,000 patents on software
have been granted. The Computer Implemented Inventions Directive
(CIID), which seeks to clarify the issue, is still being fought
over in the EU and may or may not result in legalizing them. For
small and medium enterprises (SMEs) and in particular, free
software projects, there is much to lose.

What Are Software Patents?

We want to first outline what we mean by software patents. The
argument over the directive revolves around the question of
whether or not we should be able to patent physical inventions
that use software--such as a traffic light system--and whether or
not we should be able to patent software itself. Most anti-patent
groups accept that the former should be patentable, while the
latter shouldn't. If it were, then inventions such as the
progress bar would be patentable
(http://swpat.ffii.org/patents/txt/ep/0394/160/).

Patents were originally introduced to protect concrete and
physical inventions. Any type of state protectionism is a
contract between the creator and society, under which society
abridges certain freedoms in return for increased productivity
through financial compensation. Specifically, patent law gives
inventors an exclusive right to new technology for 20 years in
return for publication of the technology's specifications and for
use of the technology in the monopolist's products. So allowing
patents wouldn't lead to increased productivity, and they
wouldn't benefit the whole of society; they would be a bad idea.

While traditional patents were for concrete and physical
inventions, software patents cover inventive ideas. An example
that the Foundation for a Free Information Infrastructure gives
is that, instead of patenting a specific mousetrap, you patent a
"means of trapping mammals" or a "means of trapping data in an
emulated environment"
(http://swpat.ffii.org/patents/samples/ep769170/index.en.html).

This is not appropriate for software development, where
innovation occurs rapidly, can be made without a substantial
capital investment, and tends to involve creative combinations of
previously known techniques. For SMEs (who make up the majority
of the industry) and free software projects, patents on pure
software would be a disaster. But for some big businesses, they
are a lucrative prize. With our economy increasingly dependent on
knowledge, there has been a large movement towards increasing
protection on information with copyright, patents, trademarks,
and other legal means, misleadingly grouped together under the
term "intellectual property." Patents are another way for some
big businesses to "protect" software in their interests.

Arguments Against Software Patents

One of the main arguments against software patents in Europe is
that they will stifle innovation, especially for free software
developers and SMEs. Though there hasn't yet been a concerted
attack against free software using patents, there have been many
attacks on SMEs. If any big business needs to remove competition
and is failing to do this by beating them on price, quality, or
free licensing, then they can simply attack them with their
patent portfolio. Even more worrying are the so-called "patent
trolls" like Acacia Technologies
(http://www.eff.org/patent/wanted/patent.php?p=acacia), which
"develops, acquires, and licenses" patented technologies, using
them to extract licensing fees out of software developers, but
who do not actually produce any software. The company is opening
an office in Europe in the spring with the intention of demanding
royalties on patents.

Since software, especially free software, is usually based upon a
huge number of sub-programmes and ideas taken from other
programmes, it would be extremely difficult to avoid patent
infringement. However, under the U.S. system, SMEs have been
restricted due to large companies building up patent portfolios
that they use to reap billions in licensing revenues from other
businesses. The idea of selling products over the Internet has
already been patented in the U.S., and Amazon used its "one-click
buying" patent to famously sue Barnes & Noble in the late 1990s.

Examples of currently granted European Patents are EP803105 and
EP738446
(http://l2.espacenet.com/espacenet/viewer?PN=EP0803105&CY=gb&LG=en&DB=EPD
and
http://l2.espacenet.com/espacenet/viewer?PN=EP738446&CY=gb&LG=en&DB=EPD).
These patent the idea of selling objects over a network using a
server, client, and payment processor, or using a client and a
server. In other words, these are patents on selling products
over the Internet; clearly a lot of software would infringe on
these overzealous patents.

The time and money spent on patent filing, prosecution,
maintenance, litigation, and licensing (which SMEs cannot afford,
and which have caused many to fold or be bought out) could be
better spent on product development and research leading to more
innovation. Surely, software companies would prefer to live with
the pressure of having to improve and innovate constantly instead
of having to deal with software patents? This is how it works
under copyright, which already prevents competitors from merely
copying software. This is also how it has worked up 'til now, and
we have managed to develop the Internet, operating systems, and
other software without patents.

For the free software community, which eschews patents both on
pragmatic and ethical grounds, they represent an even more
worrying threat. Gestures from companies like IBM won't ever
fully protect us from attacks
(http://l2.espacenet.com/espacenet/viewer?PN=EP738446&CY=gb&LG=en&DB=EPD).
Free software can only guarantee its safety in an environment
without patents, in which the only other threat is copyright
infringement, which is easy to avoid--just don't copy proprietary
code.

European Union

In September 2003, European Parliament voted though a raft of
amendments to the CIID, which ensured that patents on pure
software and business methods would not be allowed. However,
under the co-decision rules for European lawmaking, the European
Parliament, Commission, and the Council all have to agree on the
text of the directive before it can come into force. The full
process is best explained here.

The current Council document, which was officially adopted
yesterday (March 7), leaves loopholes that could be (and already
have been) exploited to allow patents on pure software.
Specifically, the Council document took amendments out of the
Parliament directive, or weakened them, on issues such as
interoperability and technical contributions in software.

For example, article 4a of the Council document states that "A
computer program as such cannot constitute a patentable
invention. Accordingly, inventions involving computer programmes,
whether expressed as source code, as object code or in any other
form, which implement business, mathematical or other methods and
do not produce any technical effects beyond the normal physical
interactions between a program and the computer, network, or
other programmable apparatus in which it is run shall not be
patentable."

However, article 2a of their document defines the term
"computer-implemented invention," which the document uses later
to describe inventions that are patentable. It states that
"'computer-implemented invention' means any invention the
performance of which involves the use of a computer, computer
network or other programmable apparatus, the invention having one
or more features which are realised wholly or partly by means of
a computer program or computer programs."

Confused? You should be. Some recitals in the proposal are
phrased in such a way that they seem to indicate restrictions in
patentability, while many of the legally binding provisions in
the articles confirm the 30,000 software patents already approved
by the European Patent Office and leave the door wide open for
further patenting of software. The Parliament text of 2003 made
the distinction close to watertight.

Clarity Needed

The CIID was initiated because there was legal uncertainty with
software patents in Europe. There will continue to be legal
uncertainty until a clear and concise directive is put into
force. A clear directive stating that software cannot be patented
would also send a strong message to other nations and trade areas
that already allow them, or that are considering it. Politicians
in America are said to be watching the European process
attentively.

The European Parliament recently voted to restart the entire
software patent directive because the Council ignored most of the
Parliament's amendments. However, even though the Parliament is
the only directly elected body in the legislative process, the
Council ignored this request and adopted their position against
their own rules of procedure (http://wiki.ffii.org/Cons050307En).

The directive will now return to Parliament for a second reading.
Though MEPs can retable their amendments, each amendment and the
final document must receive a majority vote, which can be
difficult when many MEPs don't turn up to vote at all. Our only
hope is to lobby MEPs with a renewed vigour to ensure that they
can pass a good version of the directive. If more programmers and
SMEs approach their MEPs and go beyond the single letter, we may
yet win.

Although no directive is better than a bad directive, it would
also leave companies free to patent as much as possible, either
for protection purposes or with the intent of making future
profits from the patents. What is needed is a software patent
directive that makes it clear what is and what isn't patentable.
Parliament will only listen if more software developers get
involved with groups like the FFII (http://www.ffii.org/) and the
Free Software Foundation Europe (http://www.fsfeurope.org/) and
make your voices heard.

Edward Griffith-Jones has a background in political hacking, from
environmental issues and the Trade Justice Movement to digital
issues such as software patents and Creative Commons.

Tom Chance is a philosophy student, free software advocate and
writer. He has worked in various guises with the KDE Project, the
Association For Free Software, the Foundation for a Free
Information Infrastructure and a new Creative Commons project,
Remix Reading.