Bonum Certa Men Certa

Open Standards Out of EU Digital Agenda; EBoA Does Not Stop Software Patents in Europe

Alison Brimelow



Summary: Europe's policy-making process is serving the hands of multinationals or monopolies with vested interests in lock-in and reduced competition; new patent lawsuits against Apple

EXTENSIVE lobbying from Microsoft, its cronies, and European allies seems to be paying off.



The EBoA has not been discussed here for a while (I too made a submission to it), but it was an opportunity to squash ambiguity regarding software patents in Europe.

Here is the official response [PDF]. It is about 100 pages in length and there is also this summary:

Today the Enlarged Board of Appeal of the EPO handed down its opinion on referral G 3/08, taking the opportunity to set out and confirm the approach of the EPO regarding the patentability of computer programs under the European Patent Convention (EPC).

The opinion relates to four questions referred to the Enlarged Board in October 2008 by the President of the EPO concerning points of law of fundamental importance for the Office's patenting practice in this field.

The Enlarged Board analysed in detail the development of relevant case law, and found that there was a divergence between two decisions of Technical Boards of Appeal. However, recognising that the "case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified", the Enlarged Board found that this constituted a legitimate development rather than a conflict of case law.

In the absence of conflicting Board of Appeal decisions, the Enlarged Board concluded that the legal requirements for a referral were not met. Nevertheless, the Board affirmed the right of the President of the EPO to "make full use of the discretion granted by Article 112(1)(b) EPC" in making a referral, and provided further guidance on how these requirements for such a referral should be interpreted.


The president of the FFII, Benjamin Henrion, says that the "EPO can continue to grant numerous software patents as it is doing for more than a decade" and Florian (from another push against software patents in Europe) says:

To answer your Twitter question to Benjamin, it's not the end of the story. It just means the EBoA didn't determine a significant difference in case law. I haven't read the detailed ruling yet but the EBoA certainly doesn't have the authority to overrule national court decisions. That's for sure and doesn't have to be verified by reading the EBoA's statement.

BTW, I've participated very actively in today's slashdot discussion related to Benjamin's submission on the SUEPO letter. Tried to provide additional information and clarifications where people needed help.


To be honest, Florian has moved away from some dubious stances we saw before and more people -- inside the FFII included -- start to view him as trustworthy. He did disclose his interests to us, privately.

Regarding this Slashdot post which we mentioned the other day, Red Hat's Wildeboer says: "Evil #swpat through the backdoor. EU parliament upset."

“EPO can continue to grant numerous software patents as it is doing for more than a decade”
      --Benjamin Henrion, FFII
Benjamin also alerts us about this document [PDF] from Bruno van Pottelsberghe which is titled "Europe Should Stop Taxing Innovation". The title is deceiving because the document is actually calling for the back door that may include software patents. The summary says: "The European Union failed to achieve its Lisbon agenda target of spending three percent of GDP on research and development, and so, in the EU2020 strategy, has given itself another decade to meet this goal. Meanwhile, the EU has been leapfrogged by China in terms of business R&D spend. One key element to stimulate innovation and ultimately drive European growth would be to create the long-awaited single EU patent. Today’s fragmented European patent system is poor value for money and overly complex, not least because national patent systems still have the last word over all European patents on their territory. After nearly 50 years of failure to create the EU patent, language issues and the design of a centralised patent litigation court remain unresolved. The recent EU Council deal on an ‘enhanced’ European patent system is potentially a step forward, though many problems remain unresolved."

The aspects they don't cover actually include increase of damages and scope (good for lawyers). Here is what the solicitors-targeted crowd from IAM have to say about Pottelsberghe:

What is absolutely clear to me is that a lot of people have a lot invested in the current system and want to see it changed as little as possible. National patent offices currently control the EPO, for example, and make a lot of money from it. They would still get substantial amounts of cash under van Pottlelsberghe's proposals, but their influence would wane and they would no longer grant national patents. Then there is the legal profession. Just a couple of lines from the paper make it abundantly clear why so many patent attorneys and lawyers in Europe (not all, it is important to point out) are opposed to reform.


This is funny coming from lawyers. They too are interested in the same thing because it gives them revenue at the expense of those who suffer in this system.

Former MEP David Hammerstein, who provided valuable information about what Microsoft did to the EU Commission [1, 2, 3], has just said that Kroes is falling for Microsoft's lobbying. "Open standards [are] out of EU Digital Agenda for ambiguous open architecture," he writes, "Kroes back tracks on binding openness. for procurement and EIF" (there is no further information or links).

Only moments ago Glyn Moody wrote about a leak that says more.

European Commission Betrays Open Standards



Just over a month ago I wrote about a leaked version of the imminent Digital Agenda for Europe. I noted that the text had some eminently sensible recommendations about implementing open standards, but that probably for precisely that reason, was under attack by enemies of openness, who wanted the references to open standards watered down or removed.

Judging by the latest leak [.pdf] obtained by the French site PC Inpact, those forces have prevailed: what seems to be the final version of the Digital Agenda for Europe is an utter travesty of the original intent.

For example, the draft version [.doc] dealing with interoperability was headed “Open Standards and Interoperability”; this has now become just “Interoperability and standards”.

[...]

In short, this latest version of the Digital Agenda for Europe is an utter disgrace, and shows how beholden the European Commission remains to “significant market players”. There are no benefits for European citizens here: the Commission has abandoned them for who knows what reason, and ensured that millions of Euros will flow out of their pockets – and Europe - for costly software licences at a time when the European economy can ill afford such unnecessary expenses.

This disgraceful evisceration of the earlier sensible draft shows yet again why we need full transparency at the European Commission. We need to know who met with whom, and what was said. Until we do, these kinds of last-minutes stitch-ups will continue to occur, and will continue to add further blots to the Commission's already besmirched record in this regard.


For some information about Microsoft's involvement, see:

  1. European Open Source Software Workgroup a Total Scam: Hijacked and Subverted by Microsoft et al
  2. Microsoft's AstroTurfing, Twitter, Waggener Edstrom, and Jonathan Zuck
  3. Does the European Commission Harbour a Destruction of Free/Open Source Software Workgroup?
  4. The Illusion of Transparency at the European Parliament/Commission (on Microsoft)
  5. 2 Months and No Disclosure from the European Parliament
  6. After 3 Months, Europe Lets Microsoft-Influenced EU Panel be Seen
  7. Formal Complaint Against European Commission for Harbouring Microsoft Lobbyists
  8. 'European' Software Strategy Published, Written by Lobbyists and Multinationals
  9. Microsoft Uses Inside Influence to Grab Control, Redefine “Open Source”
  10. With Friends Like These, Who Needs Microsoft?


Regarding this "Public consultation on the review of the European Standardisation System", Glyn Moody suggests telling/asking them whether it's "time to replace ISO?" (we have a fairly new Wiki page about ISO's internal corruption, but it focuses on OOXML and not on the MPEG cartel, for example).

Nokia, one of Europe's biggest lobbyists for software patents and an enemy of Ogg Theora, is currently suing Apple some more and so do other new claimants like SoftView.

Nokia is not the only company taking Apple to court over infringement of its patents. The latest mobile technology company to make that move is SoftView, a small startup based in Washington.


AT&T is also involved:



SoftView is not a patent troll, unlike Acacia whose defeat against Red Hat (and Novell) is still being covered by Rob Tiller. We also wrote about the subject in:



Apple is also said to have been sued by HTC (we will get to it later on) after Apple sued HTC, but Florian disagrees with the claim. He writes:

HTC patent counterstrike against Apple appears weak; Google still on the sidelines



HTC made this announcement today:

http://www.htc.com/us/press/htc-sues-apple-for-patent-infringement/15

"HTC SUES APPLE FOR PATENT INFRINGEMENT"

The word "sues" in that headline appears to be a somewhat misleading overstatement of what's actually happening. The press release only says that HTC lodged "a complaint with the United States International Trade Commission (ITC) to halt the importation and sale of the iPhone, iPad and iPod in the United States." By way of contrast, Apple's March 2 announcement (http://www.apple.com/pr/library/2010/03/02patents.html ) had said that Apple "filed concurrently with the U.S. International Trade Commission (ITC) and in U.S. District Court in Delaware." So what's missing from HTC's announcement is a lawsuit in the traditional sense of the word, meaning a lawsuit that would be filed with a court. HTC appears to be less determined than Apple and much less sure of having a strong case because otherwise it would, like Apple, take concurrent action at both levels, or if it had to choose between the two, HTC would take Apple to a court of law. Only filing a complaint in hopes of a governmental agency doing most of the work looks weak.

Also, HTC asserts five patents while Apple asserted 20. HTC had to choose its five bullets out of a rather small arsenal while Apple could pick its 20 out of an arsenal amounting to thousands of patents, which makes it much more likely, in purely statistical terms, that Apple's selection of patents poses a threat to HTC than vice versa.

Maybe HTC hopes that its announcement could build some kind of pressure on Apple via its customers and shareholders.

It's unfortunate that the dispute between Apple and HTC now becomes a sue-me-sue-you game between closed source and open source, with Apple most probably having the upper hand and HTC just trying to create the appearance of a retaliatory measure. I have serious doubts that HTC's apparently half-hearted counterstrike will scare Apple. HTC's light warfare is probably no match for Apple's heavy artillery. Just comparing the two different press releases that announced legal action, and knowing about the size of the patent portfolios of the two combatants, this is in all likelihood a very unbalanced battle.

Google:

There's still no indication of Google [whose Android open-source project is the reason for which Apple sued HTC in the first place] entering the fray and trying to bail out HTC and, if necessary, other vendors who build Android-based phones. When HTC and other vendors decided to create Android-based products, they might have thought that Google would help them out if any patent issues came up. I'm wondering whether Google can really stay on the sidelines of this forever, not only with a view to Android but also its other open source projects -- existing and future ones.


More about that shortly. It is relevant to Linux.

Recent Techrights' Posts

Microsoft's Bing Falls to Fourth in the Europe/Asia-Based Turkey, Share Halved Since LLM Hype, Now Only 1% (Sometimes Less)
Turkey (Eurasia) is another example of Microsoft failing with LLM hype and just burning a lot of energy in vain (investment without returns)
Backlash and Negative Press After Microsoft Tells Diversity, Equity, and Inclusion (DEI) People to DIE
Follow-up stories
Censorship as Signal of Opportunity for Reform
It remains sad and ironic that Wikileaks outsourced so much of its official communications to Twitter (now X)
The World Wide Web Has Been Rotting for Years (Quality, Accuracy, and Depth Consistently Decreasing)
In the past people said that the Web had both "good" and "bad" and that the good outweighed the bad
Comoros: Windows Plunges to Record Low of About 6% in Country of a Million People (in 2010 Windows Was 100%)
Many of these people earn a few dollars a day; they don't care for Microsoft's "Hey Hi PC" hype
The Mail (MX) Server Survey for July 2024 Shows Microsoft Collapsing to Only 689 Servers or 0.17% of the Whole (It Used to be About 25%)
Microsoft became so insignificant and the most astounding thing is how the media deliberate ignores it or refuses to cover it
Windows Down From 98.5% to 22.9% in Hungary
Android is up because more people buy smaller mobile devices than laptops
Microsoft Windows in Algeria: From 100% to Less Than 15%
Notice that not too long ago Windows was measured at 100%. Now? Not even 15%.
Microsoft Windows "Market Share" in New Zealand Plunges to 25%
Android rising
SUSE Goes Aryan: You May Not Use the Germanic Brand Anymore (It's Monopolised by the Corporation)
Worse than grammar Nazis
Gratis But Not Free as in Freedom: How Let's Encrypt is Dying in Geminispace
Let's Encrypt is somewhat of a dying breed where the misguided CA model is shunned
 
Fedora Week of Diversity (FWD) 2024 Attracting 0.01% of the IBM Staff "Was a Success"
They expect volunteers (unpaid slaves) to do the PR for them...
African's Largest Population (Nigeria) Approaching 80% Android "Market Share" Amid Steady Monthly Increases While Microsoft Has Mass Layoffs in Nigeria
Microsoft- and Apple-sponsored Western (or English-speaking) media chooses to ignore that or treat it as irrelevant (a racist disposition in its own right)
[Meme] The Warlord's Catspaw
Thugs that troll us
Microsoft Misogyny Will be the Fall of Microsoft (Covering Up for Misogynists is a Huge Mistake and Highly Misguided Short-term Strategy)
Microsoft's undoing may in fact be its attitude towards women
Red Hat Keeps Behaving Like a Microsoft Reseller (for Proprietary Stuff!), Microsoft Employees as Authors in redhat.com
In some ways this reminds us of Novell
UEFI 'Secure Boot' Once Again Bricking PCs and Fake Security Models Are Perishing in Geminispace
Let's Encrypt has just fallen again
Links 17/07/2024: New Attacks on the Press, European Patents Squashed Even at Kangaroo Court (UPC)
Links for the day
Gemini Links 17/07/2024: Proponents of Censorship and New Arrivals at Gemini
Links for the day
Links 17/07/2024: School Budget Meltdown and Modern Cars as Tracking Nightmares
Links for the day
This Should Certainly be Illegal, But the Person Who Helped Microsoft Do This is Still Attacking the Critics of It
perhaps time for an "I told you so post"
[Meme] A Computer With an Extra Key on the Keyboard Isn't Everyone's Priority
(so your telling me meme)
Africa as an Important Reminder That Eradicating Microsoft Doesn't Go Far Enough
Ideally, if our top goal is bigger than "get rid of Microsoft", we need to teach people to choose and use devices that obey them, not GAFAM
Billions of Computers Run Linux and Many Use Debian (or a Derivative of It)
many devices never get updated or even communicate with the Net, so exhaustive tallies are infeasible
[Meme] Microsoft is Firing
Don't worry, Microsoft will have some new vapourware coming soon
More DEI (or Similar) Layoffs on the Way, According to Microsoft Team Leader
What happened shortly before Independence Day wasn't the end of it, apparently
[Meme] Many Volunteers Now Realise the "Open" in "OpenSUSE" or "openSUSE" Was Labour-Mining
Back to coding, packaging and testing, slaves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 16, 2024
IRC logs for Tuesday, July 16, 2024
[Meme] Ein Factory
A choice between "masters" (or "master race") is a false choice that results in mass exploitation and ultimately eradication (when there's little left to exploit)
Links 17/07/2024: Open Source Initiative Lies and Dark Net Thoughts
Links for the day
Media Distorting Truth to Promote Ignorance
online media is rapidly collapsing
Android Rises to New Highs of Almost 80% in Cameroon
How many dozens of nations will see Windows at under 10% this coming winter?
Links 16/07/2024: TikTok Ban in Europe and Yandex Split
Links for the day
Gemini Links 16/07/2024: On Packrafting and on Trump Shot
Links for the day
[Meme] Firefox Users Who Think They Know Better Than Mozilla
Enjoy Firebook
Firefox Used to Have About Half the Market in Switzerland, But It Doesn't Stand a Chance Anymore (Chrome Surging This Summer)
Mozilla has managed to alienate some of the biggest fans of Firefox
Microsoft's Biggest Losses Are in Europe This Summer
Microsoft's ability to milk a relatively rich Europe is fast diminishing
How to Make Software Suck and Discriminate Against People at the Same Time
ageism glorified
Bing Was at 2.6% in Russia When LLM Hype Started. Now It's Down to 0.8% (for 3 Months in a Row Already)
The sharp fall of Bing may mean that exiting the Russian market won't matter to anybody
[Meme] Microsoft Seems to be Failing to Comply With WARN Act (by Refusing to Announce Mass Layoffs as They Happen)
since when does Microsoft obey the law anyway?
Microsoft Layoffs Are Still Too Frequent to Keep Abreast of and Properly (or Exhaustively) Classify
The "HR" department knows what's happening, but whistleblowers from there are rare
Bahamas Joined the "5% Windows" Club
statCounter only traces back about 1 in 20 Web requests to Windows
Links 16/07/2024: Salesforce Layoffs and Microsoft's DMARC Fail
Links for the day
Antenna Abuse and Gemini Abuse (Self-hosting Perils)
Perhaps all this junk is a sign of Gemini growing up
Possibly Worse Than Bribes: US Politicians and Lawmakers Who Are Microsoft Shareholders
They will keep bailing out Microsoft to bail themselves out
The Software Freedom Conservancy Folks Don't Even Believe in Free Speech and They Act As Imposters (Also in the Trademark Arena/Sense)
Software Freedom Conservancy was already establishing a reputation for itself as a G(I)AFAM censor/gatekeeper
Djibouti Enters the Windows "10% Club" (Windows Was 99% in 2010)
In Africa in general Microsoft lost control
GNU/Linux Share Doubled in the United States of America (USA) in the Past 12 Months
Or so says statCounter
Even in North Korea (Democratic People's Republic Of Korea) Google Said to Dominate, Microsoft Around 1%
Google at 93.26%
[Meme] The Red Bait (Embrace... Extinguish)
They set centos on fire, then offer a (de facto) proprietary substitute for a fee
Shooting the Messenger to Spite the Message
segment of a Noam Chomsky talk
[Video] Boston Area Assange Defense (Yesterday)
It was published only hours ago
Guinea: Windows Down From 99.3% to 2.7% 'Market Share'
Guinea is not a small country
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 15, 2024
IRC logs for Monday, July 15, 2024
What's Meant by "Antenna Abuse" (Gemini)
syndication is not a monopoly in Gemini and if one doesn't condone political censorship, then one can create one's own syndication service/capsule
Microsoft Layoffs and Entire Unit Termination: Diversity, Equity, and Inclusion
What an announcement to make just before Independence Day
Links 16/07/2024: Old Computer Challenge and One Page Dungeon Contest
Links for the day
Microsoft Falls Further and Closer Towards 10% (Windows "Market Share") in Kuwait
more countries entering the "single-digit Windows" (under 10%) club
Gemini Links 15/07/2024: Antenna's Pro-Hamas Bias Revisited and Old Computer Challenge
Links for the day
[Video] Julian Assange, Over One Decade Ago, Cautioning About What the Internet Had Truly Become
video is not new
Homage to Malta
Malta is probably easy for Microsoft to bribe
IRC at 16
Logging has been used for us and against us
In Malta, Android/Linux Has Overtaken Microsoft Windows (According to statCounter)
statCounter milestone?
Links 15/07/2024: China’s Economic Problems, Boeing Under Fire
Links for the day
500 Days' Uptime Very Soon
Good luck doing that with Windows...
Windows Falls Below 20% in Tunisia
A month ago we wrote about GNU/Linux in Tunisia
Links 15/07/2024: Google Wants Wiz and Why "Sports Ruin Everything"
Links for the day
Gemini Links 15/07/2024: Old Computer Challenge and Sending Files via NNCP
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 14, 2024
IRC logs for Sunday, July 14, 2024