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[DotGNU]Int'l Herald Trib on Software Patents in Europe

From: Seth Johnson
Subject: [DotGNU]Int'l Herald Trib on Software Patents in Europe
Date: Mon, 02 Feb 2004 13:14:49 -0500

-----Original Message-----
From: Dave Farber <address@hidden>
Date: Mon, 02 Feb 2004 07:04:30 -0500
Subject: [IP] Int'l Herald Trib on Software Patents in Europe

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Date: Mon, 02 Feb 2004 05:24:38 -0500
From: Seth Johnson <address@hidden>
Subject: Int'l Herald Trib on Software Patents in Europe
To: address@hidden,
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Cc: address@hidden

(A remarkable non-perverse article on the situation regarding software 
patents in Europe.  Congrats to the hardy COMDEX demonstrators, who if 
my guess is right seem to have helped this reporter get so much of the 
story straight.  You read it, and the cumulative impact seems to me to 
be clearly on the side of opposing software patents.  Europe has had a 
law stating straight up that computer programs "as such" cannot be 
patented, since the 1970's.  However members of the "patent 
establishment" and the European Patent Office have been using the two 
words "as such" in intensely bizarre ways to rationalize the granting 
of software patents.  Last September, when they recently attempted to 
get the EU Parliament to legitimate this [illegal] practice by 
codifying it in law, organizers mobilized and assisted the Parliament 
members in delivering a solid rebuke, thoroughly amending the law so 
that it clearly established that software was not included in its 
scope.  Let's hope the long overdue sea change for information freedom 
is being signalled by our friends in Europe.  Forwarded from FSF 
Europe - Ireland list.  Article text posted below.  -- Seth)

-------- Original Message --------
Subject: [Fsfe-ie] Good article on swpat in International Herald and
Date: Mon, 02 Feb 2004 09:28:06 +0000
From: Ian Clarke <address@hidden>
To: "address@hidden" <address@hidden>

Tries to be balanced although I think most would come away from 
reading it with an anti-swpat impression (as they should!).

address@hidden mailing list
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Public archive:



Europe's tug of war over software patents

Jennifer L. Schenker IHT
Monday, February 2, 2004

PARIS You cannot patent software in the European Union today - except 
if the software is part of a separate invention or process, and even 
then, it depends on your country.

That can be a murky way to define a patent, both critics and 
supporters of the status quo would agree, and they are locked in a 
tempestuous tug of war to pass a new law in their favor.

On one side is big business - largely corporations with large research 
investments and scores of patents - which wants to make all software 
patentable in the EU to mirror U.S. and Japanese law and preserve 
their right to collect royalties and protect their work.

The opponents - made up of small and medium-size software companies, 
academic institutions and supporters of "open source" software, among 
others - want to make sure software cannot be patented at all, 
allowing them to
create software without fear of lawsuits.

A European Parliament bill that would have made all software subject 
to patenting is the focal point of the outrage among technology 
activists.  Opponents of the bill succeeded in adding amendments in 
September that would essentially prevent patents from being issued for 
most types of software.  The proposal is due back in Parliament in the 
next few months, and the outcome is far from certain.

Software patenting issues are not new. In the United States, Amazon 
famously patented its "one-click" shopping technology and forced a 
competitor, Barnes & Noble, to change its Web interface in 2002. In 
2000, BT Group said it had patented the ability to "hyperlink," or 
point and click on text on the Web, though it subsequently lost a 
court case over the claim.

More such assertions are emerging all the time, said Mike Butler, a 
London-based patent attorney for Hammonds, a European law firm, 
pointing to the need for some legal guidelines.

Opponents of patenting software include some of Europe's most 
promising young technology companies, such as the Norwegian browser 
maker Opera and MySQL, a Swedish open-source database company. They 
say software patents kill innovation and point to studies that say 
implementing them leads to less, rather than more, research and 

But patent lawyers working for some of the biggest American and 
European technology firms argue the opposite: They say that no company 
will make large investments in software unless they know it is 

In a letter sent to the EU in November, the chief executives of some 
of Europe's biggest technology companies - Nokia, Ericsson, Siemens, 
Philips and Alcatel - warned that E15 billion, or $18.7 billion, of 
their combined annual research and development spending could be 
wasted if software is freed from patenting.

The current uncertainty hurts innovation, said Hakon Wium Lie, chief 
technology officer of Opera, which has received letters charging that 
it has breached a variety of American patents. "In most cases, our 
analysis concluded that we were not in breach, but it was very 
expensive for us to deal with this," he said. If Europe also adopts 
software patents, he said the problem would become much worse. "All in 
all, software patents are good for lawyers, but not software," Lie 
said. "We don't see how patents will benefit us in any way."

A software patent recently issued by the European Patent Office shows 
the extremes to which a single case can be interpreted. The patent 
granted could cost every online government project in Europe - and by 
extension every taxpayer - royalty fees, or not. 

At the end of last year, Sign On, a public software company in 
Stockholm specializing in electronic signatures and forms, was granted 
patent rights to the process of securing the transmission of 
electronically signed documents via the Internet. The patent covers as 
many as 27 European countries.

"Sign On's patent is so wide that it can cover all secure ways of 
sending e-documents, a process which is key for e-government and other 
types of e-services," said Hans Sundstrom, chief legal adviser of the 
Statskontoret, a department of the Swedish government that handles 
procurement contracts for some 7 billion Swedish kroner, or $947 
million, of information technology equipment annually for various 
government agencies.

Sundstrom said the patent could end up causing taxpayers to pay more 
and should be ruled invalid because it covers "banal processes" that 
do not represent any real innovation.

Andreas Halvarsson, executive vice president of Sign On, said that 
with the European patent, Sign On could theoretically demand that all 
European governments use its technology in e-government projects. He 
said no formal decision had yet been made by Sign On's board about how 
it planned to take advantage of the European patent.

"We won't ask governments for money, but we are interested in seeing 
our platform used," he said. "That is the whole idea of developing our 

Sign On, which last year was granted a national patent by the Swedish 
Patent and Registration Office for its secure transmissions, is facing 
a legal challenge from the Statskontoret, which says it developed its 
own software to handle procurement contracts between 1995 and 1998, 
before Sign On staked its claim in 1999. The company says the 
Statskontoret created its software after reviewing Sign On's 

The Swedish agency will fight not only the Swedish patent but any 
attempt to apply the European patent in Sweden, Sundstrom said. Other 
countries will have to battle the patent separately, he added.

Europe has a chance to take a leadership role by deciding that 
software should be treated differently than other inventions, say 
organizations such as the Munich-based Foundation for a Free 
Information Infrastructure.

But patent lawyers argue that it is more important that Europe adopt 
the same patent rules as the United States and Japan.

Current rules are "wholly unattractive for global companies seeking a 
coherent means of protecting their rights," said Butler, the London 
patent attorney. "It means, for example, that they will not be able to 
protect functionality in the EU that they can in the U.S. or Japan. It 
makes Europe a less attractive place to do business."

Even lesser solutions generate huge protests. Those against software 
patents argue that copyright protections are enough so that patents 
aren't needed.  Those for patents say copyrights will not stop someone 
from reverse-engineering a product and coming up with a different 
product with the same functionality. They say only a patent offers 

The topic is due to come up at a Council of Ministers meeting sometime 
in the next few months and then go back to the European Parliament.

In January, Laura Creighton, a venture capitalist, and a half-dozen 
other people marched in an anti-software-patent protest outside the 
Scandinavian Comdex tech show in Gothenburg, Sweden.

Creighton said she had invested E2.5 million in Straakt, a Swedish 
software company specializing in procurement.  Later, she learned 
about the Sign On patent. "When that patent showed up, it was, 'Good 
God, we are dead,'" she said.


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