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.

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