05.21.10

Who to Blame for Germany’s Dangerous Decision Regarding Software Patents

Posted in Europe, IBM, Law, Microsoft, Patents, Red Hat at 9:39 am by Dr. Roy Schestowitz

Summary: Microsoft, Nokia, IBM, GE, Siemens, SAP, Philips and several other massive companies are largely responsible for Europe’s trouble with monopolies on algorithms

THE FFII’s president recalls a situation from 2004 when the Bundestag (Germany) debated software patents and stated: “The German Bundestag shares the conviction that technical inventions, even if they contain software components, must be amenable to protection by patent law. Nevertheless, the German Bundestag has arrived at the conclusion that the present state of opinions concerning the draft directive at the European level does, thus far, not provide sufficient solutions to central questions. The definition of the “technical contribution” of a computer-implemented invention as a requirement for its patentability represents a central item of the proposed directive. For reasons of legal certainty, the definition of the technical contribution therefore has to be shaped as precisely as possible in order to achieve sufficient quality control in the patent granting practice and to prevent the patenting of so-called trivial patents.”

Jan Wildeboer, a Red Hat representative who lives in Europe and used to advocate strongly for blocking software patents in Europe before joining Red Hat, blames Microsoft for what culminated in Siemens’ offensive action [1, 2] shortly after Microsoft had done something similar. “So Microsoft lobbying seems to have been successful in Germany,” wrote Wildeboer. “Congrats on giving us software patents after Vista and other quality products,” he added. Microsoft did lobby for this.

“Let’s be honest,” wrote one of our regulars, “Software patents are nothing more than a way for Microsoft to avoid competing fairly…which is why they’ve spent like drunken sailors getting software patents implemented worldwide – now EU. Myhrvold cheering at Insidious Ventures?”

“So Microsoft lobbying seems to have been successful in Germany”
–Jan WildeboerThe overwhelming majority of Microsoft's patents are software patents and there are a lot of debates in German right now over this disastrous development in Europe’s largest economy.

Florian Müller, a prominent German who deals with this problem, has already published his analysis and there is more about it in LWN (only in the form of a discussion as Müller blocks comments in his blog). He has also published ‘”Fair Trolls” To Fight Patents With Patents’ over at Slashdot where the "The Defensive Patent License" for Free/open source software is discussed (last mentioned a few days ago). What they are trying to do is create a legal mechanism like copyleft (using copyright law to fight copyrights) to turn software patents against themselves. The OIN more or less fails to achieve this goal although it can be effective sometimes [1, 2, 3, 4, 5, 6].

Right now we know that In Re Bilski in the main tool for eliminating software patents in the United States. It is a shame that IBM (whose former employee runs the USPTO) is in favour of software patents in Europe and assuming that the problem cannot be compartmentalised in the US and Japan, it is important to work to revoke Germany’s poor judgment on software patents before this decision spreads itself like a disease in European nations (the ‘second plague’). Tell IBM to oppose this decision in Germany, assuming that IBM cares about software freedom. Otherwise, this would not be the first time that IBM puts its profits before ethics in Germany. Another troublesome company in that regard is Nokia, which was spreading software patents in Europe through the United Kingdom with a key decision on Symbian a couple of years ago. █

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway”, —Marshall Phelps, IAM: Microsoft to have 50,000 patents within two years, Phelps reveals

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