04.21.16

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Growing Threats of Software Patents in Europe and the FRAND Trap Which Microsoft Promotes/Lobbies For

Posted in Europe, Free/Libre Software, GNU/Linux, Google, Microsoft, RAND at 9:14 am by Dr. Roy Schestowitz

And Microsoft told us it “loves Linux”…

EU lobbying

Summary: Microsoft’s lobbying against Android in Europe and for FRAND (essentially software patents) in European standards yield results

Software patents in Europe have been covered here for much longer than the EPO. Companies like Microsoft were using them to effectively ban Free/Open Source software (FOSS), or exclude such software from procurement policy as per the standards. According to this new article from Dr. Glyn Moody, Microsoft was somewhat successful with this as its lobbyists continue lobbying for FRAND in Europe [1, 2]. Yes, in addition to lobbying the European Commission for many years against FOSS/Android [1, 2, 3], eventually leading to antitrust action against Google, “Just as Microsoft is adopting open source, the EU is excluding it from policy – like Microsoft originally demanded,” to quote Simon Phipps, who in turn cites Moody who’s saying: “It’s no surprise that the Commission was trying to keep that particular detail quiet, because FRAND licensing—the acronym stands for “fair, reasonable, and non-discriminatory”—is incompatible with open source, which will therefore find itself excluded from much of the EU’s grand new Digital Single Market strategy. That’s hardly a “balanced IPR policy.”

“An inherent problem with this policy is that it wrongly assumes that patents on software have legitimacy in the EU.”“The problem for open source is that standard licensing can be perfectly fair, reasonable, and non-discriminatory, but would nonetheless be impossible for open source code to implement. Typically, FRAND licensing requires a per-copy payment, but for free software, which can be shared any number of times, there’s no way to keep tabs on just how many copies are out there. Even if the per-copy payment is tiny, it’s still a licensing requirement that open source code cannot meet.”

An inherent problem with this policy is that it wrongly assumes that patents on software have legitimacy in the EU. It’s a loophole or even a distortion of European law. Well, it’s not as though Microsoft truly tries to obey the law anyway… its front group, Business Software Alliance, has pursued this kind of policy for nearly a decade now.

“Well, it’s not as though Microsoft truly tries to obey the law anyway…”Incidentally, yesterday IP Kat published this article about “Patentability of user interface designs”, citing the Board of Appeal which isn't particularly software patents-friendly (unlike the EPO, it doesn’t just seek to maximise profit by reducing patent quality or by also expanding patent scope over time, in defiance of the EPC*).

One comment from the FFII’s President said: “Jacob said the “Technical” wording is a restatement of the same problem. “Technical” becomes the black hole where the EPO finds it way to bypass the spirit of the EPC, where all the exclusions concerns abstract matters.”

““Technical” is generally a rather meaningless term.”One person responded by saying: “have you bothered to read the post? It explains how, on the contrary, the BoA of the EPO has refused to see anything “technical” in presentations of information, except in three now rather old cases (T 643/00, T 928/03 and T 49/04). Apart from that, I know for one thing that T 49/04 was an extremely controversial decision within the EPO, and this may explain why, afterwards, the Boards didn’t continue on the same path.”

Here we have a wilfully ignorant person who doesn’t know the correlation between the UPC and software patents (high-profile people have spoken explicitly about it) and s/he says “conspiracy” to discredit those who speak about it, shooting the messengers as follows:

If “Zoobab” is the same Zoobab as on Twitter, s/he seems to be an anti-software-patent activist and appears to be a loyal follower of the Techrights blog, who see anything that even mentions software patents or the UPC (even in a negative context) as evidence of some sort of grand conspiracy to defraud the European public.

As it happens, I’m dubious about the merits of software patents or indeed the UPC. But I’ve learned that anything less than full, wholehearted agreement with the wacky conspiracy theories of such characters is seen as yet further evidence that there’s not only a conspiracy, but also that you’re part of it, even if you broadly share their misgivings albeit for different reasons.

The above puts words in the mouth of both Benjamin Henrion and myself — words that were never at all uttered. In spite of the secrecy which breeds suspicion**, there is a lot of information one can accumulate by digging deep enough. There is actually plenty of evidence to show what we both said (not the above), the EPO’s management keeps promoting both the UPC*** and software patents (we wrote about it with examples earlier this year), and this got the attention of other people last night. “Technical” is generally a rather meaningless term (like “innovative”, “novel” and other such buzzwords). A toilet bowl too is technical. See this reaction to the phrase “the effect of a particular layout on the mental processes of the user could be considered… technical” (response in Spanish).
______
* “Customer”, apparently, based on this new tweet, is a new word for “applicant” as EPO inherits the ENA mentality of Battistelli.

** The EPO has once again (second time in a week) promoted the EUIPO. Recall the overlaps between those two [1, 2, 3]].

*** Here is the latest UPC promotion from the EPO (last night).

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