Summary: Many updates about the software patents situation in Europe and some other assorted developments from across the Atlantic

About a week ago we showed that Judge Uwe Scharen could help legalise software patents in the EU. The FFII has him listed as one of the players in Europe's argument over software patents and according to the following new report, he may soon rule from the throne of the EPO Enlarged Board of Appeal:

For the Free Software Foundation Europe and the Foundation for a Free Information Infrastructure (FFII), 2010 looks like a decisive year given that several interesting decisions will be taken on the patentabilty of software, business processes and conventional seeds. Four questions about computer implemented inventions and their patenting have been referred by Brimelow to the EPO Enlarged Board of Appeal and a decision can be expected soon, even if the referral itself is rejected.

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The free and open source software model might be a better alternative to patenting and then “repairing” possible barriers to technology transfers, said Karsten Gerloff, president of the Free Software Foundation Europe. It might be possible to transfer this model to other technology areas like climate technology, he said. In any case, information technology related climate technology would gain through free and open source software.

The FSFE, according to Gerloff, will follow closely the work by the EU Commission on the European Interoperability Framework (EIF), which consists of a set of interoperability guideline documents for European Public Services. While the first draft resulting from consultations in 2008 contained solid references to open standards and open source software, according to the FSFE, these had vanished from a second draft leaked last September. Six member states filed objections against this second EIF draft, according to the FSFE.

Ignoring open standards and open source software has a series of disadvantages, according to the free and open source software organisations, from anti-competitive effects against smaller software companies to proprietary formats for public content.

A second focus of the FSFE’s work in 2010 is the relationship between standards and patents. “In our view, patents that are part of standards have to be licensed royalty free,” said Gerloff. While standardisation bodies like the World Wide Web Consortium or the Internet Engineering Task Force this worked well, in other organisations like the International Standards Organisation, reform is necessary, he said. “There is a lot of work to do.”

There are all sorts of troubling issues here. The president of the FFII warns that an "Hungarian MEP [is] pushing for the Community Patent only in English, so that it gets ignored by the non-English EU citizens"

Citing this PDF, he also adds that "Liberals [are] pushing more patents, easier and cheaper to obtain"

The following report (also here, but requires subscription) says:

The European Patent Office is considering whether to redefine the criteria for patenting software inventions.

This new article titled "Maximizing protection for software innovations" also requires subscription:

Software innovators can better protect their intellectual property by drafting patent claims with an eye toward how those claims may actually be interpreted in litigation.

Europe's policy on software patents is always under pressure to change, courtesy of Microsoft and Microsoft allies like SAP (although there are other batsmen for software patents whose interests are not directly tied to Microsoft). The president of the FFII says that "SAP is lobbying the European Commission for UPLS/EUEPLA" (the unified system that can bring software patents) and experience suggests that SAP has always been rather hostile towards Free software [1, 2, 3, 4, 5, 6, 7]. Despite all this -- and rather surprisingly in fact -- Matthew Aslett from the 451 Group chose SAP as a "case study for open source engagement" just a couple of days ago. He received a statement from SAP:

Of course some issues remain. On a related issue, one of the most significant for free and open source advocates is the company’s attitude towards software patents. A good explanation as to why this is the case is provided by Glyn Moody.

I asked Claus and Erwin for their perspective on SAP’s stance on software patents and how that impacted the perception of SAP. Part of the response was the expected position that as SAP exists in a world where there are software patents it has no choice but to engage in patenting software itself if it is to retain a strong position against competitors. The other, with specific reference to open source, was as follows:

“SAP actually is a big proponent of strong and concise IPR licensing regimes for all standards and open source initiatives we participate in. Whatever claims of patents and patent applications that essentially need to be infringed to implement a standard or use an open source component should always be licensed in a reasonable and non-discriminatory manner by the individuals and organizations that have contributed to the project (obviously, in open source projects RAND means royalty-free). SAP does participate in open source projects particularly in order to drive adoption of a certain technology. There may be SAP patents in that very domain and they may be essential, but we require ourselves to freely license those patents to everybody. But we expect the same from any other project participant. And that’s actually why we prefer governance models like the one from the Eclipse Foundation (that also comprises contribution analyses in order to minimize unintentional copyright infringements).”

Suffice to say, this is just PR/spin. SAP's actions have spoken for themselves for many years, ever since SAP's Shai Agassi went about with his offensive rhetorics against Free software. It's like they had their own little Steve Ballmer (before he left to do something ethical). Glyn Moody has already responded to the post from Aslett and he fills in some gaps.

Readers with a taste for high comedy may remember my post “Why SAP is Such a Sap over Software Patents”, which rather took to task a certain large German software company over its stance on software patents. Now, to be fair, SAP has done some good things for free software – not many, but some – and Matthew Aslett has produced an excellent summary of these on his 451 CAOS Theory blog, which I urge you to read.

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The other problem is the reference to RAND. As the quotation notes, RAND for open source projects means royalty-free – but not for traditional software companies. In that case, RAND means a “reasonable” licence fee – which may be small, but is, as SAP must know, completely incompatible with free software licences like the GNU GPL.

Over in Europe, SAP is considered one of the worst offenders when it comes to attempting to illegalise Free software (using software patents). So again, it's funny to see this company listed as "case study for open source engagement". An "open source divorce" would be a better case study matching SAP.

In other news from Europe, Glyn Moody shows "stacking [of] the deck yet again" by pointing to this report about the IP Observatory:

In the legal affairs committee JURI in the European Parliament, we have been discussing an initiative by the EU Commission to set up an ”IP Observatory” that should monitor and combat all kinds of intellectual property infringements, from commercial goods counterfeiting to kids downloading films and music. Right now, we are in the process of drafting a resolution, known as the Gallo report, on the subject.

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So much for the involvement of the European Parliament on this issue. We have been invited to hold an exchange of views in the JURI committee, and we are currently spending time on drafting a resolution on if and how the IP Observatory should be set up.

These lawyers are interfering with law that is fairly reasonable. Who is running this system anyway? In reference to it, says TechDirt, "Government for the people?"

It is worth adding that, according to the president of the FFII, "CCIA launched a dedicated blog on IP and patents earlier in January" and it says:

The Computer & Communications Industry Association is launching its new intellectual property blog today to serve as a forum for tech policy discussions. With the Obama appointees now in place and Congress looking for ways to help the economy grow, CCIA is optimistic about seeing patent reform this year.

“As we talk about developing an innovation agenda to boost our economic recovery, patent reform and balanced copyright rules should be part of that discussion,” said CCIA President & CEO Ed Black. “Current patent policies favor some business models over others, but after years of discussion it’s time for this Congress to recognize what consensus there is and lead the country toward reforms that would create the most innovation and jobs -- and ideally allow for the next generation of innovation.”

The CEO, Ed Black, received millions of dollars in Microsoft money, even personally. Microsoft bought CCIA out of the antitrust case and then attacked GNU/Linux at IBM with CCIA's help [1, 2, 3]. The president of the FFII connects some more dots by showing this "Interesting blog of CCIA about software patents, patent trolls and al, but their call for reform will keep swpats [software patents] alive"

Money well spent by Microsoft in Europe?

“The IETF came under criticism from the FSF last year after it had allowed patents inside standards.”Well, either way, there are also some important developments outside of Europe. Here, for instance, is an update on the notorious VoIP patent which the EFF is challenging.

Free software can simply ignore software patents in the large majority of the world and moreover, as the president of the FFII puts it by quoting, "Torvalds is the fellow who advised his people not to read patents, setting the public disclosure of patents on its head."

Microsoft is the same. It made it a policy to discourage staff from reading patents (so as to avoid infringements being willful).

In more minor news, IETF creates a wiki in which to summarise its work. The IETF came under criticism from the FSF last year after it had allowed patents inside standards. ⬆