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To read comments to this article, go here
EU Patents - It Ain't Over 'Til It's Over
Tuesday, June 22 2004 @ 06:19 AM EDT

If you thought the EU patent story was a done deal, I suggest you read this account by Arend Lammertink on his efforts to turn things around in the Netherlands, which may result in the Dutch Parliament revoking its vote approving the patent directive. Lammertink holds a Masters degree in Electrical Engineering from the University of Twente and works as a Software Engineer for dGB Earth Sciences that specializes in quantitative seismic interpretation software and services. OpendTect, one of the company's products, is "the world's first open source seismic interpretation system". He writes:

"Seemed as good as lost. But it ain't over yet. We've played our cards (and luck!) quite nicely here in The Netherlands (if I may say so myself) and at this moment the Dutch Parliament is actually considering to revoke the vote Minister Brinkhorst gave at the Council. This has never happened before in the history of the European Union!. . . .

"The Dutch parliament will make a final decision about the position the Minister will take in September. A debate about this issue will take place at Thursday, the 24th of June, 19:45-20:45 CET. Also see the official agenda of the Commission for Economic Affairs. They may also decide to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states . . .

"Remember, all European countries can legally revoke their vote if they want to and they have the power to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states."

A preliminary report by several Spanish experts on European procedural law, under the coordination of Dr. Luis Fajardo Lopez, confirms that the votes can be changed:

"There are legal ways to change the position adopted on May the 18th meeting. In other words, at this procedural moment there is no legal obstacles to reversing the political agreement on common positions, neither to adopt a new probably more balanced political compromise."


The article is full of references, including to this 1998 article that claims in the past the BSA sued companies and agencies that couldn't prove ownership of their software, Microsoft's and that of others, and then settled on terms that the company from that day forward use only Microsoft software, a charge Microsoft denied. Novell, however, said the sweetheart deals that left Novell out in the cold did happen that way:

"In 1995 Antel, the national telephone company of Uruguay, was caught pirating $100,000 worth of unlicensed software programs from Microsoft, Novell, and Symantec. Antel was nabbed by the Business Software Alliance, a trade association that partly acts as a global bounty hunter for the software industry. The BSA's lawyers in Uruguay quickly filed suit.

"But instead of waiting for a ruling on the case, the BSA abruptly dropped the suit in the fall of 1997. The BSA receives funding from most of the top software companies but appears to be most heavily funded by Microsoft. And, according to Antel's information technology manager, Ricardo Tascenho, the company settled the matter by signing a 'special agreement' with Microsoft to replace all of its software with Microsoft products. . . .

"Felipe Yungman, Novell's manager of security for Argentina, says he and another staffer at Novell discovered, while pursuing their own investigation for the company, that the BSA was setting up sweetheart deals for Microsoft. 'Companies or government offices had to, as a condition [that the BSA] forgive them of piracy, replace Novell products with Microsoft products,' he says."

In an interview with Microsoft's Steve Ballmer, he first praises his company for all the R & D they do, and then indicates they intend to be paid back for it by using their patents:

"Since Microsoft went public in 1986, we have invested a total of $36 billion in R&D, creating a wide range of integrated technologies that have helped customers and developers do more. Over the next 6 years alone, we will invest another $40 billion in innovation, continuing to make us a top R&D spender in any industry. Specifically, our focus is on integrated innovation, making our products and services work together and understanding how customers use technology and information to improve their lives. No other company in our industry is focused on this kind of innovation. We also are filing for 2,000 patents a year, a number we expect to increase in the years ahead."

What does a company need 2,000 patents a year for? Maybe to supplement the BSA's alleged activities? Maybe they realize their days are numbered as a software vendor, that FOSS is the future. If they can't muscle us into using their software, perhaps they can force us to pay a toll for using whatever we prefer. Wait a sec. Isn't that SCO's impossible dream? Or maybe they'll just use patents to sue FOSS out of the market as Plan B? No doubt they will daintily use others, like patent pool companies that have little to lose, to do their fighting for them. Say, is that legal for a monopoly to do? To use their power and assets to gang up on the competition and make it impossible to compete?

The EU patent decision will play a role in what happens to free and open source software's ability to compete. It's very odd to me that governments, many of which have announced that they intend to switch to GNU/Linux, don't connect the dots and comprehend that there is a connection between having that choice and patent decisions they make. It does seem that there was a measure of confusion in the minds of those voting, and that at least some thought they were voting to curtail software patents. Perhaps they should read this article,"Why Europe Should Be Wary of Software Patents," by Brian Kahin, who is a visiting professor in the School of Information, Ford School of Public Policy, and Department of Communication Studies, at the University of Michigan. He was formerly Senior Policy Analyst at the White House Office of Science and Technology Policy where he was responsible for the intellectual property and digital economy issues:

"Large companies amass portfolios for strategic purposes: cross-licensing, blocking, deterrence, and revenue generation. . . .While patents facilitate niche entry by small companies, patent portfolios disadvantage small companies seeking to enter markets for complex products. They have little to trade, but they need a lot of licences. But how many, and from whom? As Robert Barr of Cisco testified at a FTC roundtable: 'There are too many patents to be able to even locate which ones are problematic. I used to say only IBM does clearance ... but IBM tells me even they don't do clearance searches anymore.' . . .

"As last month's Managing Intellectual Property interview with Marshall Phelps, the architect of IBM's licensing programme, shows, Microsoft wants to start earning returns from its massive portfolio. After all, why shouldn't users pay innovators? Why shouldn't today's developers pay tribute to the R&D investments of the past 20 years? Why should European developers, small, medium, open source, or otherwise, get a free ride on Microsoft and IBM?

"This might be a reasonable argument if developers actually learned anything from these massive portfolios, but from most accounts nobody reads software patents. Programmers don't use reference manuals, patents are not written to convey knowledge beyond the bare minimum needed to fulfil legal requirements, and lawyers advise against reading patents because of the risk of wilful infringement. . . .

"According to an AIPLA economic report, when the amount in a controversy is under $1 million the average cost per side is half a million (2003), not including staff time and opportunity costs. Licence fees of $10,000 look pretty good compared to the costs of contesting patents.

"On the other hand, licence fees of $10,000 or even $100 kill the open source model of software distribution."

So, that's the game. Remember all the criticism of Linus which SCO heaped on him for saying he didn't do patent searches? Now you know the rest of the story. Nobody does them.

Many of you may be planning to attend LinuxTag next week. If so, perhaps you may be interested in the following information from Jan Wildeboer, which he asked me to relay to you:

Next week the LinuxTag will take place, Europe's biggest Linux event. Software patents will be a major theme, of course, now that we may have to face complete patentability (http://swpat.ffii.org).

Many people will wear the following T-Shirt: http://dhcp42.de/ltag/index.html

FFII (http://www.ffii.org), mySQL, FSF-Europe etc. will hold a demonstration against software patents in Europe at Thursday, 24. June starting at 6:00 pm.

We will have 10 "programmers in chains" - they will wear prisoners costumes with patent numbers on them. This is meant to ... inform of what is about to happen.

More information here: http://kwiki.ffii.org/DemoKarlsruhe04En

Banners here: http://dhcp42.de/ltag/index2.html

Media contact: jw at domainfactory.de

You may also find this FFII press release of interest, because it also indicates that the deal isn't yet firm, and that there are efforts to reinstate the amendments that were dropped in May:

"It is not yet certain that the Irish Presidency has secured a real majority. To re-instate amendments in the European parliament requires absolute majorities. This is achievable: many of the amendments did achieve this level of support in the first reading. But some of the votes are likely to be very close."

The press release says that it was Germany that did not stand firm, by the way, and was instrumental in getting the draft compromise passed.


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