DAY ONE OF NEW EU PATENT WAR: EU COMMISSION PUSHES FOR LITIGATION AGREEMENT
EU internal market commissioner McCreevy said at yesterday’s hearing on the future of European patent policy in Brussels that he wants to “move forward” with the European Patent Litigation Agreement (EPLA) -
Anti-software patent campaigners vehemently oppose the EPLA, claiming it is “from a software patents point of view […] far worse” than the directive they defeated in the European Parliament last year
Brussels (July 13, 2006) - At yesterday’s European Commission hearing in Brussels on the future of European patent policy (http://ec.europa.eu/internal_market/indprop/patent/hearing_en.htm), the EU’s internal market commissioner Charlie McCreevy sided with lawyers and big-industry lobbyists by supporting the European Patent Litigation Agreement (EPLA). McCreevy described the EPLA as a “promising route” and said: “I have asked my services to move forward with this project.” McCreevy also announced a “multi-faceted package” of patent policy proposals that he will put forward before the end of the year and mentioned “patent trolls”, especially in the IT sector, as an issue he plans to tackle.
Anti-software patent campaigners spoke out strongly against the EPLA at the first large-scale clash of the pro- and anti-software patent camps in more than a year since the European Parliament rejected the software patent directive.
The European Parliament plans to vote on a patent policy resolution in late September. In the build-up to that vote, there will be an intense debate on the EPLA and, in particular, on whether it would result in the legalization of software patents in Europe and an explosion of litigation costs.
Florian Mueller, the founder of the award-winning NoSoftwarePatents campaign that helped to defeat the EU software patent directive last year, was one of the speakers at the hearing. He said in his speech that the EPLA “is just another attempt to give software and business method patents a stronger legal basis in Europe than they have now. […] From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had: not only would software patents become more enforceable in Europe but also would patent holders in general be encouraged to litigate.”
But Mueller was surprised that Nokia’s Tim Frain voiced a skeptical position on the EPLA, outlining six concerns including among others comparative costs, the quality of judicial decisions, and a need to balance the interests of right holders and alleged infringers. Frain said the EPLA in its proposed form is “good for right holders” and pointed out that Nokia is not only a plaintiff in patent suits but sometimes also a defendant. Nokia, like the vast majority of patent holders, usually enforces a patent only in one country at a time, and is worried about disruptive effect a Europe-wide injunction could have on its business.
The audience at the hearing consisted of an estimated 200 lawyers, lobbyists and government representatives. The Commission gave more than 50 people an opportunity to speak out, and the vast majority of them backed the EPLA, among them patent attorneys from EADS, Bosch, Qualcomm, Siemens, and Thomson. But the opponents of software patents, including Austrian Green MEP Eva Lichtenberger, complained in their speeches that their movement was grossly underrepresented.
Several speakers at the hearing, including the Fraunhofer Institute (which invented the MP3 format) and ProTon, an organization of university researchers, complained about the lack of patent protection for software in Europe under the current regime and were among those who strongly demanded the ratification of the EPLA.
The legal status of software patents in Europe is contradictory. While the existing written rules, which go back to the year 1973, disallow patents on computer programs “as such”, the European Patent Office (EPO) and various national patent offices have granted tens of thousands of software patents. However, European patents, even if granted by the EPO, can only be enforced country by country as of now, and national courts declare many EPO software patents invalid when their holders try to use them against alleged infringers. Critics argue that the EPLA would create a new court system that would be under the control of the same group of government officials who already govern the EPO, and that the judges appointed by those people would support the EPO’s granting practice and its broad scope of patentable subject-matter with respect to software and business methods.
Last week, the European Commission published a preliminary evaluation (http://ec.europa.eu/internal_market/indprop/docs/patent/preliminary_findings_en.pdf) of the responses it received to a patent policy questionnaire published in January. The Commission’s questionnaire addressed different policy initiatives, first and foremost the unitary “Community patent”, a patent that would be valid across the entire EU. But the Commission’s preliminary findings indicate that disagreement over the language regime of such a Community patent has thus far prevented the EU from moving forward with the project. The Commission’s analysis shows that industry organizations show a strong preference for the EPLA instead.
Mueller also expects (http://www.no-lobbyists-as-such.com/florian-mueller-blog/ecj-epla/) that one of the next steps will be for the European Commission to ask the European Court of Justice for an opinion on whether the ratification of the EPLA requires direct involvement on the part of the EU or whether any EU member states would be free to conclude the EPLA on their own. The EPLA’s proponents would prefer to eliminate the need to reach a decision at the EU level, fearing that the European Parliament might once again wreck their plans.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
European Commission may ask European Court of Justice for opinion on EPLA ratificationJuly 10th, 2006
As I explained in my previous blog entry, EU internal market commissioner Charlie McCreevy is going to announce pretty soon that he wants to help to get the European Patent Litigation Agreement (EPLA) ratified. The EPLA is a new attempt to make software and business method patents more enforceable in Europe, and beyond that effect, it would generally encourage certain types of patent holders to litigate.
But there’s a technical problem (”technical” in terms of “legally technical”): The European Commission’s legal services say the EPLA is a so-called “mixed agreement” that the member states of the EU cannot conclude on their own: they need the EU involved. To be very precise, it’s not the EU (European Union), but the EC (European Community, formerly called European Economic Community) that has to do this. However, for the purposes of this blog, I’ll just talk about the EU (it’s about the same set of member states anyway).
The Commission’s legal services say that the EPLA interacts with parts of the acquis communautaire (the totality of existing EU law), in particular Regulation 44/2001 (”Brussels I Regulation” on jurisdiction) and Directive 2004/48 (intellectual property rights enforcement). There is a rule in the EU that if a certain field of law has already been regulated by the EU, the EU member states must not enter independently intointernational treaties that affect the same law because conflicts might arise sooner or later.
The Commission’s position is shared by, among others, Klaus-Heiner Lehne, an influential conservative MEP (Member of the European Parliament), but not by the proponents of the EPLA. A number of them, including the Brussels-based lobbying organization EICTA, claim that the EPLA is perfectly in line with the acquis communautaire. And they stress that negotiations on the EPLA began years before the two aforementioned pieces of EU law took effect, claiming that the European Court of Justice (ECJ) has previously allowed EU member states to move forward on their own with an international treaty because the beginning of negotiations predated the affected parts of the acquis communautaire. There are some other theories as well.
The motivation on the part of the pro-EPLA movement is obvious: They want the EPLA to be ratified, and it’s easier for them to get a number of countries (possibly even just two, such as Germany and another one) to do so directly. As soon as the EU is involved, certain decisions have to be taken at the EU level. And for decisions in the EU, you either need (depending on the type of decision) unanimity in the EU Council (i.e., the votes of all member states, which means that presently 1 out of 25 countries could block the decision) or a qualified majority (much more than 50% of the votes) in the Council plus the support of the European Parliament. The software patent directive failed because of the latter requirement: the EP voted it down.
That’s exactly what the proponents of the EPLA fear, and they believe it’s easier for a couple of countries to get started with the EPLA. National governments could agree on such a deal in direct negotiations (at a diplomatic conference), and could then have their national parliaments (in which the government parties typically have a majority) ratify the deal. The EPLA would only take effect in those countries which ratify it, of course. In the EPLA, a minimum number of countries would have to be defined for the agreement to take effect, and that number has not been agreed upon thus far, but some even said two countries might be enough if one of them is large (such as Germany, which is very keen to get the EPLA ratified).
Even though the proponents of the EPLA would like to lower the hurdle for ratification, most of them (except for a very few die-hard radicals) would rather not take their chances. If some EU member states pressed ahead with the EPLA in breach of their EU-related obligations, the ECJ might later rule that their having ratified the EPLA took place on illegal grounds. That would be a nightmare, especially if it were to occur at a point in time at which the European Patent Court (which would be created under the EPLA, but outside the EU) might already have adjudicated a number of cases: those rulings might then become invalidated, at least as far as the EU is concerned.
At this EPLA-focused conference in London on June 30 (i.e., 10 days ago), Jacqueline Minor, a high-ranking Commission official (her title is “director, knowledge-based economy”), made a presentation. In her talk, she mentioned the possibility of the Commission obtaining an ECJ opinion under Article 300(6) of the Treaty Establishing the European Community (”EC Treaty”) beforehand. That paragraph says the following:
The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.
The second sentence basically means that if the ECJ says a proposed agreement (such as the EPLA) is not in line with the EC Treaty, the EC Treaty has to be modified, which requires a unanimous decision by the EU member states.
I’m pretty certain that the Commission is going to obtain the ECJ’s opinion on the EPLA. I have no doubt McCreevy wants the EPLA ratified, and even though the Commission as a whole would, for institutional reasons, not view favorably the conclusion of the EPLA without the EU’s involvement, I think McCreevy personally would love the idea of lowering the hurdle for the ratification of the EPLA. And if the ECJ says the EU has to be involved, then no one can blame the Commission for having had a correct legal opinion. The Commission and particularly McCreevy only have something to gain and nothing to lose by asking the ECJ for an opinion, so I can’t imagine they wouldn’t do it. Even most of the proponents of the EPLA would very much prefer to have legal certainty, one way or the other. Dr. Minor said in her speech that the ECJ can deliver such an opinion within three to six months. But there’s no guarantee: it can always take longer.
When the Commission will formally ask the ECJ for an opinion is another question. Maybe McCreevy will already announce this at the hearing on Wednesday. Maybe he’ll do so at some point after the summer vacation season.
There are also some question marks concerning the status of the EPLA-related documents that the ECJ would have to analyze. There is a draft EPLA, but it contains placeholders because some questions have not yet been resolved and would have to be hammered out at an intergovernmental conference. There is also a draft statute for the EPLA court, but there are no Rules of Procedure for the EPLA court yet. The Commission might first ask the intergovernmental working party that negotiates the EPLA to get its act together and present a final set of proposed documents (possibly even including the Rules of Procedure) for the ECJ to decide on. Or if the Commission asks the ECJ on the current basis, the ECJ might be unable to provide a definitive opinion for the lack of a complete and final set of EPLA documents.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
No doubt: EU Commissioner McCreevy is determined to back the EPLA (European Patent Litigation Agreement)July 9th, 2006
Superficially, it appears that the European Commission is going to evaluate the 2,500+ replies it received to its January 2006 questionnaire on patent policy as well as the input it will receive at this coming Wednesday’s (July 12) hearing prior to deciding how to move forward in the area of patent policy.
However, it would be naive to believe there is even the smallest doubt as to what EU internal market commissioner Charlie McCreevy intends to do. He has decided on that a long time ago, at least a number of months, possibly as early as last fall.
McCreevy has a new game plan after his failure to push the software patent directive through last year. That directive was not his baby originally: it was part of his predecessor Bolkestein’s legacy. But my book gives various examples of how McCreevy tried to outmanoeuvre and misinform the European Parliament, especially in the chapter titled Democracy Under Siege. In my book you can also read more about why McCreevy and the Irish government he belonged to (and which practically appointed him to the EU Commission) are particularly close to the business interests of Microsoft and a few other large American corporations.
I am going to say in my short speech at the upcoming hearing: “The EPLA [European Patent Litigation Agreement] is just another attempt to give software and business method patents a stronger legal basis in Europe than they have now. […] From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had: not only would software patents become more enforceable in Europe but also would patent holders in general be encouraged to litigate.”
That’s why Microsoft and the other usual suspects who supported the software patent directive have already done some lobbying for the EPLA in the European Parliament and the member states of the European Union. Now they’re just waiting for McCreevy to jump on the bandwagon, and I’m sure they won’t have to wait too long. It’s for no other reason than political etiquette and a desire to appear open-minded that McCreevy has not yet stated expressly what he wants to do.
After the political summer hiatus, the Commission is going to make its official recommendation based on the consultation process that will effectively end with the July 12 hearing. In September or in the fourth quarter of 2006, McCreevy’s going to say he’d really love to move forward with the so-called Community patent if only he could, but unfortunately there’s not enough political backing for the Commission’s related proposal in the short term,. But then he’s going to reiterate that patent policy is way too important an area to leave untouched for too long. So, he’ll say, given the tremendous demand expressed by stakeholders (i.e., large corporations and patent bureaucracies) for the EPLA, he’s going to support that one, even though (which he’s not going to say clearly, but probably hint at between the lines) the EPLA flies in the face of the EU’s usual philosophy, being a non-EU initiative that calls into question the commitment of many politicians, such as McCreevy, to the EU’s own court system and the notion of the Single Market. And even though that would be the very opposite of the truth, he might additionally claim the EPLA would pave the way for the Community patent. What I just said I didn’t say after looking into a crystal ball, nor is it guesswork. It’s pure logic, and the statements made by McCreevy and his directorate-general (the Internal Market & Services DG) leave no doubt. Let’s analyze their latest declarations together, and you’ll understand:
In this speech before the European Parliament’s Legal Affairs Committee (”JURI”) on June 21, McCreevy said: “The hearing will focus on four topics: the principles and values that underpin the patent system; the proposed Community patent; non-Community initiatives such as the London Protocol and the European Patent Litigation Agreement (EPLA); and possible areas for harmonisation at Community level.”
Since the first of the four topics is just general talk and kind of unrelated to any initiative, this leaves three possibilities for what the Commission might propose to do: another push for the Community patent; a push for the EPLA; a new EU directive related to patent law, similar to the software patent directive that the European Parliament threw out a little over a year ago.
Actually, the very first option in politics is always to do nothing, to retain the status quo in a field. But McCreevy ruled that one out in the very same speech, saying toward the end of the section that discusses patents, “One thing is certain, progress in the patent field has to be made.”
So if he clearly wants to do something, which of the three proposed initiatives would he support? He himself said in that same speech, “The Community Patent remains blocked in the Council pending a solution on the language regime.” That’s old news. On May 18, 2004, the same day the EU Council reached a political agreement on a proposal for a software patent directive, the last negotiations on the Community patent took place. Nothing has happened in more than two years since.
Last week the Commission published a preliminary evaluation of the responses it received to its patent policy questionnaire. In that document, the Commission says that there is, in general, support for the community patent. However, the Commission also states that there is a fundamental disagreement over the language regime, i.e., in how many (and which) languages a patent document needs to be translated in order for the patent to be enforceable across the entire EU. That’s why negotiations stalled more than two years ago, and it’s easy for the Commission to claim that there’s still no way to resolve that problem.
On the last possibility (harmonization at the EU level), the Commission’s preliminary findings make it clear there’s no possibility of making progress: “There is very little support for harmonization. […] Mutual recognition is rejected almost unanimously at this stage.” Also, McCreevy reiterated in his June 21 speech that he won’t make a new proposal for a software patentability directive: “I will not bring a new initiative forward on this during my time as Commissioner for the Internal Market. I will leave this choice to my successor.”
By now we’ve already crossed all non-EPLA options off of the list. And what does the Commission say about the EPLA itself?
In his June 21 speech, McCreevy lamented the “regional distribution of courts” with respect to patent litigation in Europe, describing it as a competitive disadvantage vis-a-vis the US market. Under the EPLA, a new European Patent Court would be created, with a centralized appeals court. And he concludes the part of his speech that is related to patent policy with this statement: “[…] I think we should look at all possible routes forward, be they Community or non-Community initiatives.” That means to say: even though the EPLA is not a Community (i.e., EU) project, let’s try.
Welcome to the new war over software patents in Europe.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
What’s the gist of a hearing?July 9th, 2006
Yesterday I published the text of the short speech I’m going to give at the European Commission’s patent policy hearing on Wednesday (July 12). I think I should explain to the non-politicos among you what the term “hearing” means in this context.
Governments, quasi-governmental bodies (which is how I’d describe the European Commission, non-judgmentally) and legislators (for the most part, that means parliaments or subsets of a parliament, such as a committee or a party) frequently conduct hearings. At a hearing on a particular topic (in this case, patent policy), politicians and their staffs listen to people who are, personally or professionally, affected by a future decision. Obviously they can’t invite everyone who is or feels affected, so the organizers pick a limited number of participants who should ideally be representative of the different groups concerned.
Theoretically speaking, the dialogue between politicians and “stakeholders”, and the debate among stakeholders in front of politicians, should enable politicians to better understand the issue at hand and to arrive at a better decision.
Such hearings can take place in private or, such as in this case, in public, i.e., in front of an audience that typically also includes journalists. For the patent policy hearing, there was far more demand for seats in the audience than the Commission had available, so the Commission had to decide whom to invite.
In the political world, there are indeed some hearings that politicians approach with an open mind. But that’s the exception, not the rule. In most cases, a hearing is a little bit like a show trial, or to put it slightly less pejoratively, it serves the purpose of reaffirming the opinion the organizers have previously formed.
Hearings sometimes take place in the form of so-called roundtables. My book No Lobbyists As Such - The War over Software Patents in the European Union talks about a couple of such roundtables in which I participated. The roundtable format suggests that the dialogue should ideally result in some form of consensus, but in most cases, that’s impossible, and that fact turns a roundtable into just another kind of hearing.
The organizers of roundtables and other hearings try to display an open mind and a sense of pluralism by inviting a certain number of dissenters. However, the fact that someone listens to you in acoustic terms doesn’t mean he or she is going to really care about what you say, or that he or she is going to do anything for you.
So if those hearings are in most cases extremely unlikely to influence the opinion of the organizers, why would one participate?
There are multiple motivations, and in the particular case of a public hearing such as the one on Wednesday (July 12) in Brussels, it’s essential to make one’s case in front of the audience and the media. In a democracy, a political decision is the outcome of an opinion-forming process, and such hearings, especially if there is such tremendous interest in them as in this case, are key events. If the objective were to change the Commission’s thinking, it would be a waste of time and money to go there. After all, they already know my position paper (and those of all other speakers as well). But there are many other decision-makers and opinion leaders around, such as several MEPs (Members of the European Parliament). The Commission is very powerful, but it does not have legislative authority per se.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
Manuscript for my speech at the European Commission’s upcoming hearing on the future of the European patent systemJuly 8th, 2006
This coming Wednesday (July 12), I am going to speak during the litigation part of the European Commission’s patent policy hearing in Brussels. The hearing marks the end of a consultation process that began in January when the Commission published a questionnaire, in reply to which I wrote a position paper. At the hearing I am going to deliver the following short speech:
Ladies and Gentlemen,
Some of you may already know me as the founder of the NoSoftwarePatents campaign, but let me start by introducing myself a little more specifically. I’m an independent software developer. Commercial software, that is - not open source. In addition, I am here to represent three companies: 1&1 Internet AG, which is Europe’s largest Web hosting company; Materna GmbH, an IT and telecommunications company; and MySQL AB, Europe’s largest open source software company. All three of those companies hold European software patents and are well aware of the problems that patents create in their markets.
My corporate partners and I definitely don’t share the enthusiasm for the EPLA that some others have expressed.
All that talk about optimizing the European patent system is nothing more than a pretext. Only in five to ten percent of all cases, parallel litigation involves the same patent in more than one European country. In all other cases, even the estimates of the proponents of the EPLA - such as an impact assessment by the European Patent Office - suggest a doubling or tripling of the total cost of litigation. That would disadvantage smaller companies in two ways: the prospect of expensive litigation would force them to settle on unreasonable terms if someone threatens to sue over an alleged infringement, and if they would like to enforce their own patents, they might not be able to afford it. In some industry segments, the patent system already has the effect that “might makes right”, and the EPLA would exacerbate that very problem.
The actual motivation behind the push for the EPLA is this: it’s all about handing control over the judicial system - as far as patents are concerned - to the same group of people that governs the European Patent Office. Many patents that the EPO grants are declared unenforceable by the national courts that presently rule on infringement matters and make the final decision on the validity of a patent within their territories. In particular, national courts don’t tend to support the EPO’s practice of granting disguised software and business method patents. That fact is the only reason we don’t have US-style problems with software patent litigation in Europe yet.
There are special interests that previously tried to make software and business method patents enforceable in Europe, and a little more than a year ago, the European Parliament put an end to that effort by rejecting an ill-conceived proposal for a software patent directive. The EPLA is just another attempt to give software and business method patents a stronger legal basis in Europe than they have now.
Under the EPLA, the same group of people who control the EPO would get to appoint, and to periodically reappoint or dismiss, the judges. That same group negotiated the rejected software patent proposal in a working party of the EU Council, so we know all too well where they stand: they are infinitely more interested in growing the patent system than they are committed to Europe’s economic growth. Even worse, employees of the EPO would be allowed to serve simultaneously as judges on the EPLA court. For the sake of judicial independence, the proposed EPLA must not come into effect.
From a software patents point of view, the EPLA would have far worse consequences than the rejected patentability directive would have had: not only would software patents become more enforceable in Europe but also would patent holders in general be encouraged to litigate.
If the objective is to make Europe’s economy more competitive, we don’t need a system that makes litigation a more attractive option. We don’t even need cheaper patents: if SMEs have problems with the patent system, it’s not because of their own access to patents but due to the patents others can use against them. What we really need is fewer patents, and I don’t see a strategy on the part of the Commission to counter the trend of patent inflation.
Last year, the EPO received more than 180,000 patent applications. If the past is any indication, those 180,000 applications will result in about 90,000 new patents. (The EPO granted “only” about 50,000 patents last year, but that’s because it has a backlog and hasn’t been able to catch up yet. Examination takes several years.)
The fewest of those new patents relate to true inventions that justify the grant of a 20-year monopoly. In most cases, someone invented a patent instead of patenting an invention. Addressing that problem should be a far higher priority to the Commission and to Europe’s legislators than strengthening the position of certain types of patent holders.
Thank you.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
Evidence for Mark Webbink’s pro-patent directive lobbying on July 5, 2005July 3rd, 2006
In my previous blog article, I mentioned the fact that Red Hat’s deputy general counsel, Mark Webbink, lobbied in the European Parliament on July 5, 2005 (the day before the EP’s decisive vote to reject the software patent bill) to keep the software patent directive alive.
I had not anticipated the kind of Internet debate that this statement would trigger, including some insulting emails that were sent to me, and least of all I would have expected Mark Webbink to call into question the “veracity of [my] statements”, which is what he did in the discussion below this LWN.net article. He knows exactly what he did.
The word “motivations” also appears in that posting. It’s really simple: on the occasion of a patent suit having been filed against Red Hat, I thought it was time to tell the truth. Especially the free and open source software (FOSS) community should know where certain key players stand. That will better enable people to take a critical perspective on such initiatives as the OSDL Patent Commons.
Contrary to what Mark Webbink claims, my related statements are not “unverifiable”. What he did on July 5, 2005 is a well-documented fact, and here’s some evidence:
From: [name and address of adviser to Michel Rocard MEP deleted] Sent: Monday, October 31, 2005 2:53 AM To: Florian Mueller Cc: europarl-help@ffii.org Subject: Re: Economist article — coordinated response needed
[cut] Yes. The day before the vote, as I had been considered by them as somewhat connected to Mr Rocard 8^) , I have been quite heavily lobbied by a group comprising Mrs Thornby-Nielsen (Sun), Mrs Moll (Google), Mr Webbink (RedHat) and Mr Cox (IBM). All four had basically the same concerns [cut]
I have removed parts of the email and in particular the name of the author, further to his request. He would prefer to stay in the background, like many political advisers do. But europarl-help@ffii.org is a key mailing list of European anti-software patent activists, and dozens of people received that email directly. No one will seriously question its authenticity.
And here’s an important excerpt from a follow-up email:
From: [name and address of adviser to Michel Rocard MEP deleted] Sent: Monday, October 31, 2005 1:44 PM To: Florian Mueller Cc: europarl-help@ffii.org Subject: Re: Economist article — coordinated response needed
[cut] > They were against the rejection deal, right? I know that Mark W. and > Charlotte T.-N. didn’t want rejection.
It seemed so to me. All of them. Basically, it seemed to me they were not likely to have no sotware patents at all. The interpretation I gave Mr Webbink was that it is not culturally acceptable, for most people that come from the legal and patent world, to reject a system from which one can make some money… [cut] I believe the above should eliminate all reasonable doubt about what happened that day. While the FFII and I were asking everyone we knew in the European Parliament to reject the proposed software patent directive, Red Hat’s Mark Webbink, along with representatives of IBM, Sun and Google, pushed in the opposite direction.
So what did he really want to achieve? Someone pointed me to an article Mark Webbink wrote and which in its paragraph #20 refers to the EU software patent directive. He asks for a definition of the term “technical contribution” (a key term in patent law) that “will eliminate the vast majority of business method patents and will restore a substantial non-obviousness test to software patents”. If you read that carefully, it means he accepts software patents per se. He’d just like to raise the bar a little bit, and the FFII and I and all others who know how substantive patent law is applied in practice can tell you that defining “technical contribution” properly would not be a sufficient measure. It would just have the desired effect as part of a coherent framework of patentability criteria. Otherwise it’s like a bucket has five holes and you close one: all of the water will still go through the other holes.
In the same article, and in the Red Hat/Sun position paper that Mark Webbink published again on LWN.net, a lot of emphasis is put on an interoperability privilege. That, again, means to accept the patentability of software per se, but to demand a carve-out for certain purposes. To the FFII and myself, interoperability was not even a secondary priority. We focused on the definition of what is patentable and what is not. If software is not patentable at all, there’s no pressing need for an interoperability exception as far as we’re concerned. Interoperability was exactly the area in which the pro-software patent forces were most wiling to make a concession if it allowed them to win the wider battle.
Finally, I’d like to reiterate what I said in my previous post: What Mark Webbink did behind the scenes is not necessarily Red Hat’s position as a company, even though Red Hat has entrusted him with patent lobbying. There are many people at Red Hat who clearly oppose software patents, and who opposed the EU software patent directive, most of all Alan Cox.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
Patent infringement suit filed against Red HatJune 29th, 2006
The Patently-O blog reported yesterday that a software company named FireStar has sued Red Hat over an alleged patent infringement. Patently-O also provides the complaint and the patent document, and quotes from Red Hat’s patent policy. The FireStar suit relates to a piece of software that Red Hat acquired as part of JBoss Inc.’s intellectual property.
It seems to me that the FireStar patent is quite broad, and if it is upheld, it will affect other companies as well. While I know that certain parts of the free and open source software (FOSS) community don’t like to hear this, I have repeatedly stated that FOSS projects and products are particularly threatened by software patents. In this specific case, however, the fact that an open source program is at the center of a patent infringement suit appears to be a coincidence.
Red Hat was one of the three companies who provided the initial funding for my NoSoftwarePatents.com campaign. I will always be grateful for that, and naturally I can’t talk in public about confidential aspects of the working relationship I had with Red Hat at the time. Suffice it to say that the working relationship ended, and while the other two sponsors (1&1 Internet AG and MySQL AB) continued to support me on a couple of other occasions, things didn’t work out with Red Hat again.
I have since watched Red Hat’s role in the political debate on software patents. At first sight, Red Hat appears to continue to take an anti-software patent position. Also, Red Hat made an effort last year to convince some of the large FOSS-friendly IT companies such as Sun to dissociate themselves from some of the pro-software patent propaganda spread by certain lobbying entities.
However, a few months after the European Parliament’s historic vote against the software patent directive, an adviser to a key MEP (Member of the European Parliament) told a private FFII mailing list that Red Hat’s deputy general counsel Mark Webbink lobbied him on the day before the decisive vote and tried, unsuccessfully, to prevent the rejection of the software patent directive by the parliament. Yes: A Red Hat executive lobbied for the EU software patent directive at the 11th hour (on July 5, 2005, to be precise), alongside such companies as IBM and against the position taken by the anti-software patent movement. That’s a fact. It doesn’t mean to say that Red Hat as a whole is in favor of software patents, but it says a lot about the person who did this.
Red Hat has meanwhile been at the forefront of all sorts of placebo initiatives designed to alleviate patent-related concerns of open source developers and users, such as the OSDL’s Patent Commons. Depending on how the FireStar suit evolves, Red Hat may have to answer the question whether it grossly overstated the benefit of those initiatives to open source developers and users. Apparently, the patent projects supported by Red Hat haven’t really discouraged FireStar from suing.
Posted in Uncategorized, Patents, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
First set of error and typo corrections to my book on the war over software patentsJune 25th, 2006
Today I uploaded version 1.01 of my e-book, No Lobbyists As Such - The War over Software Patents in the European Union. I just corrected a few minor errors and would like to express my gratitude for the corrections submitted by Alberto Barrionuevo and Péter Somogyi.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
Published my book electronically, under a Creative Commons licenseJune 6th, 2006
My book No Lobbyists As Such - The War over Software Patents in the European Union is now available for download: www.no-lobbyists-as-such.com/NoLobbyistsAsSuch.pdf
The PDF file has a size of approximately 2 megabytes. In order to read the document, you need Adobe Acrobat Reader. By the way, I have also published a German edition of my book on www.softwarepatente-buch.de.
Originally I had planned to self-publish my book in print. After the official announcement of my book in late March, I received inquiries, especially for an electronic version, from literally all over the world, even including universities in the US, Europe, Asia and Australia. However, it seemed that print publishing wasn’t going to work too well: there is an audience for this, but it’s geographically scattered.
When I wrote the book, I didn’t have the expectation of making money with it. I wouldn’t have wanted to leave money on the table (nobody does). However, what matters to me more than anything else in this respect is to get my book out to a large audience, especially since the next major war over software patents in Europe will officially break out on July 12 at a hearing to be held by the European Commission in Brussels. The same forces who supported the software patent directive we successfully fought against are now trying to achieve everything they wanted the last time, and even more, by means of the European Patent Litigation Agreement (EPLA). I hope my book will motivate people to take action against the EPLA, an international treaty that would have far worse consequences than the software patent directive would have had.
I chose the Creative Commons Attribute - NonCommercial - NoDerivatives license. It allows the free distribution of the PDF file in accordance with these rules. Commercial exploitation or any modification would require my consent.
I hope many of you will enjoy the book. Reading almost 400 pages on a screen may be a bit inconvenient. What I actually recommend is that you print it out with a laser printer.
Posted in Uncategorized, Patents, EU & EU Member States Politics, Information & Communications Technology Policy, Miscellaneous, Intellectual Property Rights | Comments Off
Senior researcher at Chinese Ministry of Commerce believes software patents stifle innovationMay 28th, 2006
The FFII’s Swpatcnino page continues to be the most up-to-date and complete collection of links to news items concerning software patents. Here’s an interesting article that I became aware of on that page: Shanghai Daily - IPR protection hot potato not black and white
The article talks about IPRs (intellectual property rights) in general, and patents are only one of the legal devices that are counted among them. With respect to software, I prefer a clear distinction to be made between copyright and patents, and only in a few exceptional cases I consider it accurate to refer to copyright, patents and other rights by the collective term IPRs.
A significant part of the article, which was written by a senior researcher at the Chinese Ministry of Commerce, narrows in on software patents, stating that the US approach to software patents “is in fact discouraging technological innovation on the whole”.
Since the granting practice of the European Patent Office (EPO) with respect to software is only superficially but not essentially different from that of the US Patent and Trademark Office (USPTO), the same criticism would also apply to the European approach. However, the difference is that software patents are often enforced successfully in the US, while the national courts of key European countries such as the UK and Germany are rather reluctant to support the EPO’s absurd interpretation of Europe’s existing statutes in the field of substantive patent law (substantive patent law = rules as to what can and cannot be patented).
Entities with anti-competitive ambitions, such as Microsoft, SAP and various lobbying organizations controlled by them and similar players, now aim to change the European judicial system with respect to patents so that they will in the future be able to enforce their software patents on a large scale. They failed miserably last year with trying to push the EU software patent directive through, and their latest scheme is the European Patent Litigation Agreement (EPLA).
Posted in Uncategorized, Patents, Information & Communications Technology Policy, Intellectual Property Rights | Comments Off
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