[Fsfe-france] O'Reilly DevCenter: Perspective on Software Patents in Europe

[tariq KRIM]

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


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.