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11.28.10

New Push for Software Patents in Europe (Innovation Union) While UK’s Tim Berners-Lee Opposes (F)RAND

Posted in Europe, Free/Libre Software, Patents at 12:10 am by Dr. Roy Schestowitz

Tim Berners-Lee

Image from Wikimedia

Summary: The debate over patents in Europe is starting to heat up again, just shortly after the patent maximalists got defeated; Sir Tim Berners-Lee explains his opposition to (F)RAND, in addition to software patents

EUROPE is under constant threat from the software patents lobby and the hawks from the USPTO. They try to warp the EPO so as to better serve the clients in the United States, clearly at the expense of European ones (the multinationals can pretend to be European and American at the same time). The patent lobby has pushed for more or less the same goal all along, but occasionally the name of the process gets changed a little. The one advocated most recently by Barnier et al. [1, 2, 3] was called the “EU Patent” or something along those lines, but it’s just another gown/brand for what was known as community patent, “unification”, or something like the “harmonisation” McCreevy spoke about back in his days. Now they call it ‘Innovation Union’ (equating patents/monopolies with “innovation”) and a European patents booster (from the same blog of a patent attorney which offers tips on patenting software in Europe) says that the Belgian presidency (Vincent van Quickenborne) is its pusher:

According to a recent press release, the European Commission published a Communication entitled “Europe 2020 Flagship Initiative Innovation Union”, which identifies ten key points required for turning Europe into a true “Innovation Union”.

Axel H. Horns, another such attorney from Europe (Munich), is counting on Vincent van Quickenborne when he writes:

Mr Vincent van Quickenborne announcing talks on ‘enhanced co-operation’ instead of EU Patent – http://tinyurl.com/37hmmsx

As some background on Vincent van Quickenborne consider [1, 2, 3, 4]. “EU Council Press” gives him lip service, so he has become a dangerous person to software developers.

#EUPatent on the agenda of the Competitiveness #EUCouncil on 10 Dec. / CC @VincentVQ

That’s just marketing talk. Competitiveness is effectively promoted without patents (monopolies), not with more of them and not with increased “enforcement” (litigation). The EU Patent was seen falling just weeks ago, with Italy and Spain taking a leading role in shooting it down because they know better. EurActiv says pressure tactics may be used now. It’s appalling if true.

Italy found itself in a political squeeze on Thursday (25 November) as several key European countries moved to create a unified patent to protect the design of products sold across their borders.

There will be huge harm caused by software patents in Europe, including an open door to patent trolls in the long term. The president of the FFII warns:

Second BGH decision validating software patents in Germany, technical means the software runs in a computer http://ur1.ca/2fgca

He also points out that the “Irish Government [is] on the way to levy taxes over patent royalties, was serving Microsoft and Google to evade US fisc” (linking to this story).

The Government has revealed just how little faith it has in its vaunted “smart economy” by proposing the abolition of the one incentive SMEs had to create their own intellectual property (IP) – patent royalty tax exemptions – a leading patent lawyer has angrily railed.

Buried on page 96 of the ‘National Recovery Plan 2011 – 2014’ to remove €15bn from the State’s deficit and stimulate a recovery is a list of measures to be abolished.

Top of the list is the tax exemption for patent royalties.

It is followed by a number of other measures, like the abolition of investment allowance for machinery and plant and exploration expenditure, the approved Share Options Scheme and benefit in kind for employer-provided childcare.

Glyn Moody sarcastically states regarding the above: “lucky #swpats don’t exist ‘as such’”

Yes, Europe left ambiguity there with the phrase “as such”. There is an additional debate right now over software patents and web standards. The founder of the Web (Tim BL) opposes software patents. I asked him about it (noting that W3C leadership has vested interests in employers’ patents [1, 2, 3, 4]) and he clarified that W3C work must be royalty free. This led to a debate where Tim wrote: “#w3c work is #royaltyfree. That is *not* FRAND, as FRAND-0 can still require you get some license.”

Simon Phipps wrote: “But doesn’t “royalty free” also imply that other restrictions are permissible? Remember Sender ID was RF: http://bit.ly/dXecPy”

Carlo Piana wrote: “actually I’ve used W3C IPR policy as a good example for Open Standards, in the past. E/thing is perfectible tho’”

“…I’ve used W3C IPR policy as a good example for Open Standards, in the past.”
      –Carlo Piana
Mr. Oliva added: “but isn’t that *still* a subset of both FRAND and FRAND-0? [...] i.e., it’s not correct to say it’s *not* FRAND, but rather that it’s the non-evil subset of FRAND”

Glyn Moody also published “Tim BL: Open Standards Must be Royalty-Free”, wherein he argues:

There’s nothing radical or new there: after all, as he says, the W3C specifies that all its standards must be royalty-free. But it’s a useful re-statement of that policy – and especially important at a time when many are trying to paint Royalty-Free standards as hopeless unrealistic for open standards. The Web’s continuing success is the best counter-example we have to that view, and Berners-Lee’s essay is a splendid reminder of that fact. Do read it.

The head of the FSFE, who previously argued with the BSA over (F)RAND [1, 2, 3, 4, 5, 6, 7, 8, 9], shares his “Christmas wish to the EPO”:

The European Commission is setting out to reform Europe’s standardisation system. About time, too. Standards define what things around us look and behave like, whether soft- or hardware. Standardisation in Europe is currently dominated by a small number of organisations, and they’ve mostly done their business quietly in a corner where not many people cared to look. Except the ones with a lot of money at stake, of course.

That explains why standardisation today is still a game that’s mostly played by big corporations. At the same time, much innovation is happening elsewhere, coming from individuals and small and medium-sized companies (SMEs). Their numbers are large, but they don’t really have a voice in standardisation. Where they could participate, they often lack the time, money and specialised expertise to do so.

Well, there has been lots of RAND-related news recently [1, 2, 3, 4] and all these issues matter a lot. In Europe, mobbyists seem to be promoting Microsoft agenda (including RAND) under the camouflage/costume of opposing software patents.

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6 Comments

  1. satipera said,

    November 28, 2010 at 6:10 am

    Gravatar

    There is nothing wrong with a EU patent or copyright system. What is wrong is if a bad system is implemented. I do applaud the efforts being taken by many people to stop a bad system being implemented but I just wanted to draw this distinction.

    Dr. Roy Schestowitz Reply:

    What exactly do you refer to by “EU patent or copyright system”? I notice no capitalisation in “patent”. As you correctly point out, it’s an implementation issue and the “EU Patent” is like a package that’s a wolf in sheep clothing. Remember that ACTA too got ‘dressed up’ as means of stopping malicious (fake) drugs and Digital Economy Bill is all euphemisms and sob stories.

    http://en.wikipedia.org/wiki/Digital_Economy_Act_2010

    The bill (or #DeBill) could just be called “Bob”, but it’s the actual details therein that matter.

    twitter Reply:

    Software patents are always bad and Europe should never recognize them. The EU has already endorsed ACTA, which is a terrible and confused piece of legislation that includes very bad copyright laws and bad patent laws. You should do everything you can to defeat ACTA which may drag software patents through the backdoor through the ill defined phrase “intellectual property” [2].

    ACTA is too large and confused to be passed. It should be thrown out and any useful parts considered separately. The Mobbiest will be inserting malicious changes into it before it passes and no one will get what they expect. It was created in secret and no one really wants it.

    PJ points to 35 year old records of the US debate about software patents. Her pick is worth quoting here,

    In 1967 programmers and computing companies almost uniformly resisted the idea of software patentability, proposed to them by the US Patent Office. Senator Brooks expressed alarm at the PO’s move to introduce software patents through a set of guidelines and demanded that these should be “set aside until … responsible officials at the policy-making levels of the executive and legislative branches of government have had an opportunity to take whatever action might be necessary to protect the public interest”. Patent lawyers and representatives of patent-experienced companies such as Bell Laboratories argued in favor of the PO’s move. BEMA and IBM argued that programs “are not within the present patent statutes and are not suitable for patent protection”. The chairman of the Association for Computing Machinery (ACM) published a poll, according to which most programmers opposed to the idea of software patenting and stressed that “the vital issue of computer program patents should not be left to the deliberation of patent attorneys in government and industry”. This is a fairly detailed account of the struggle and the various positions at the time. It shows how little has changed in the 35 years since then.

    Software patents were then, as now, all about creating monopolies to protect the position of incumbent companies like Bell Labs. The insane results of software patents in the US is the clearest evidence of how bad they are.

    Dr. Roy Schestowitz Reply:

    That’s a pretty good find. A few days ago the FFII found some more recent paper from the UK (around 10 years ago) where the situation with regards to software patents gets discussed. At some stage the lobbyists usually manage to defeat logic.

  2. satipera said,

    November 28, 2010 at 9:47 am

    Gravatar

    To be a little clearer. As you know I have my problems with much of the proposed legislation and was not really commenting on it. As you picked up; my problem is not with European Union wide legislation, in fact I welcome it. The problem is the content of the legislation and how it has been influenced by industry lobbying and pressure from foreign governments. I just wanted to underline that distinction, lest we equate member state law good, Union law bad.

    twitter Reply:

    Bad laws like ACTA are worse when they are inflicted on many people at once by undemocratic means. They way ACTA was written and is being implemented is another reason to reject it. The confused use of the propaganda term “intellectual property” assures us that ACTA is both meaningless and malicious, and this is the primary reason it should be rejected.

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