[DMCA-Activists] Int'l Herald Trib on Software Patents in Europe

[Seth Johnson]

(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 Tribune
Date: Mon, 02 Feb 2004 09:28:06 +0000
From: Ian Clarke <address@hidden>
To: "address@hidden" <address@hidden>

http://www.iht.com/articles/127600.htm

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

Ian.
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> http://www.iht.com/articles/127600.htm


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 development.

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 protected.

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 patent."

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 technology.

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 protection.

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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