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The BSA Sends A Letter Re EU SW Patents
Saturday, June 18 2005 @ 02:28 PM EDT

As you know, the software patent debate is supposedly heading for closure, with an important JURI Committee vote Tuesday and a larger EU parliament vote in July. I gather the strategy by the pro patent side is to avoid a second reading at all costs, and that they are trying to avoid accepting any amendments to the CIID. Feel free to correct me, if I've misunderstood. Here's Reuter's description of what is going on:

As EU lawmakers head for a showdown over new rules on patenting inventions, a key vote next week reflects a lack of consensus -- an outcome that's seen as favoring big software developers. Member states and the European Parliament are looking at a bill on patenting inventions that use software. The legislature's legal affairs committee is due to debate the bill Monday and vote Tuesday.

Lawmakers have come under intense lobbying, reflecting a politically charged faultline in the world's software industry. Those who support open-source or free software say copyrighting is preferable to patenting, and welcome Rocard's stance, saying it will allow developers to enter markets that would otherwise be sealed by patents. Rocard wants a narrow approach to patenting, to effectively include only "programmable apparatus" or hardware applications such as an ABS braking system or a machine to pump insulin. But the member state version opted for a broad approach to patenting software-related innovations, pleasing large companies such as Nokia and Microsoft, which say this will stop copycat devices from countries like China. EICTA, which represents 51 major multinational companies, said Friday that lawmakers should reject Rocard's proposals and back what the member states have agreed on.

As they say, the lobbying is intense. Someone sent me a copy of a "Dear Patent Holder" letter the Business Software Alliance has just mailed to those they hope will help them fight for software patents, and it's clear from the letter, the BSA is worried about losing this battle.

Here's the letter, with my comments interspersed in purple text, so you can reach your own conclusions:

[BSA letterhead]

United Kingdom

14 June 2005

Dear CII patent holder,

I am writing to alert you to proposed European patent legislation that may directly impact you and your valuable intellectual property rights.

As you may have heard, the European Union is considering a new European law that relates to the patentability of computer-implemented inventions (the "CII Directive"). Patents for inventions that use software have long been available in Europe. Indeed, your company and thousands of other small- and medium-sized European enterprises hold such patents.

[So much for the myth that current law in the EU does not allow US-style patents.]

The proposed CII Directive was intended to codify and harmonise current European patent practice. Now, however, some interest groups are lobbying the European Parliament to change the proposed Directive with the stated goal of forbidding any patent on computer-implemented inventions altogether. Instead of making the patent system more responsive and affordable for SMEs, their focus is on robbing small businesses of the value of their intellectual property.

[The last is FUD, and quite untrue, as well as being offensive language. But notice that the BSA views the directive as making the patent system easier and cheaper for patent holders. And, as I understand the arguments the anti-software patent groups make, their concerns include real fear about the CIID's impact on Free and Open Source software, such as Linux, and the concern that it would make it harder, if not impossible, for it to even survive. The BSA does not even mention this serious issue -- do you want Linux to continue to be available to you or not?]

One reason these groups are succeeding is that Europe's patent holders, including SMEs, have not been as vocal as their opponents in defending their position with European policymakers. This leaves opponents of the CII Directive free to spread misinformation about CII patents, such as their assertion that only large corporations rely on such patents. Disgracefully, these groups even claim that the CII Directive was drafted by large corporations, an assertion that could not be further from the truth or more disrespectful of the European political process.

[This is funny. Who does the BSA represent? Who will the CIID benefit the most? The assertion that I have seen is that mainly US large corporations will benefit from the CIID. The letter does not contradict that assertion, I notice. Certainly, Microsoft has made no bones about wanting software patents in Europe. And they are not alone among large US corporations in that position. IBM is a member of the BSA also. However, there is a distinction, in that Microsoft is attacking Linux; IBM is trying to protect it by means of a patent commons.

What makes this letter so odd is that the BSA, according to FFII's website, published a study that found that only 20% of SMEs in Europe hold any of the identified European "computer-implemented invention" patents, that this figure has remained constant between 1998 and 2004, and that of those 20%, half are owned by US and Japanese enterprises. That puts the letter in a new light, doesn't it? The study opens with this:

"We wish to define computer-implemented inventions (usually referred to as 'software patents' in the United States)."

The FFII points out that this confirms what they have long said, that there is no inherent difference between US-style software patents and patents on "computer-implemented inventions" as granted by the EPO. You can read the study [PDF] for yourself.]

If you care as seriously as we do about preserving reasoned rules on patents, we invite you to take at least one simple step. Personalise the enclosed postcards and send them to the European Commission and to your elected representatives in the European Parliament -- as soon as possible. The European Parliament is considering this issue now -- in June and again at the beginning of July -- so speed is key.

[So, a message to the EU Parliament: if you get a lot of postcards that are identical in many respects, you will know now where they came from.]

You could do more, for example by writing a personalised letter to your elected representatives. Our on-line "toolkit" makes this easy. It contains a letter template as well as suggestions on other ways you can get involved in this important debate. Postal addresses for your elected representatives, as well as additional practical tools can also be found at

Yours sincerely,

Francisco Mingorance
Director, Public Policy, BSA, Europe

According to FFII, Mr. Mingorance is a co-editor of a business-methods software patent proposal that was voted down, to his regret, in 2003. The link takes you to a story that tells us "most software patents are held by non-European companies."

But the main takeaway to me from this Dear Patent Holder letter is this: they must think the CIID is in trouble to send such a letter. You can also read the letter [PDF] they sent to the EU Commission, offering various reform proposals to make the CIID more attractive, I suppose, to anyone still sitting on the fence. Significantly, on this BSA page on what is happening in Brussels, they say this:

Now, however, some interest groups are lobbying the European Parliament to change the proposed Directive with the stated goal of forbidding any patent on computer-implemented inventions altogether. To this end, they have put forth a great deal of misinformation about the patent system in general, and about CII patents more specifically.

Because these issues can be complex, much of this misinformation is being accepted as truth. For example, some policymakers now believe that patents impede innovation and thus that broad categories of inventions should be excluded from patentability.

I believe patents do impede innovation in the software context. Patents are a monopoly on ideas, after all. And judging by this letter, I'd say misinformation is available from the pro software patents side. The cynic in me thinks the BSA coalition will win, by fair means or foul. But they themselves do seem to believe at this point that this is a real horse race, and that, to their surprise, they may not be riding on the winning pony.

The Dutch government, in a report presented to the Dutch parliament recently, and now being circulated to other EU member states, says the software patent directive should be put on hold for five years, while issues get defined and sorted out better. They also think there is no way to separate patentable and unpatentable software. It's all or nothing, in their view, and they'd like all, but with tweaks to the patent system to reform it so that stupid patents don't get granted. Good luck with that.

So, rather than trying to get the directive to resolve all the issues, they suggest resolving patent reform issues and then swing back around later, when such arguments can't be made presumably by opponents of the directive. Frankly, it sounds like they are afraid there will be a no-software-patents decision, and they'd prefer the status quo to that.

I think 5 years off is a grand idea, since the EU suggests giving Microsoft a gift, 5-year breather on allowing FOSS to interoperate with them in the server space. It makes the playing field a little more even, don't you think? Let's all have 5 years off. Just kidding. Sort of. Actually, I think software and patents need to get a divorce. And stay away from each other.

You can read the Dutch message here or read FFII's English translation.

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