decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

To read comments to this article, go here
It's a NO! - 648 - 14
Wednesday, July 06 2005 @ 11:36 AM EDT

Bloomberg News tells us how it went, but the short version is, the directive on software patents was rejected:

The European Parliament rejected a law on patents for software, ending a three-year effort by companies including Nokia Oyj and Siemens AG to counter U.S. domination of Europe's $60 billion market.

The parliament in Strasbourg, France, today voted 648 to 14 to throw out a draft law protecting inventions that combine software and machinery, such as code that reduces battery consumption on mobile phones. The assembly opposed U.S.-style limits on free software and ruled out a compromise with European Union governments, which endorsed the legislation in March.

"We buried a bad law and did so without flowers,'' said Eva Lichtenberger, an Austrian member of the parliament's Green group. "The legislation would have hindered the development of small companies and helped big businesses because they are the only ones that can afford patent lawyers and litigation costs.''

More coverage: - German - Danish

Of course, this is not the end.

After the vote the EU Commission said it would respect the vote and would not put forth "any new proposed legislation in this area", according to Reuters.

There are hints that the next chapter will be an attempt to pass the so-called "Community" patent. Talk about Orwellian-newspeak. Here's the plan:

Lawmakers including Kauppi said the rejection of the legislation should give fresh impetus to the creation of a single European system, known as the ``Community'' patent.

The British government, which took over the EU's rotating presidency for half a year on July 1, will sound out partners in the coming months about the prospect of breaking the deadlock on the Community patent, said Emma Lockwood, a spokeswoman for the U.K. Permanent Representation to the EU in Brussels.

A view from one FSFE blogger:

It is a great victory for the freedom fighters, and for the European people, to have prevented the adoption of a bad directive, which was the perspective just a few days ago. This was prevented by lots of behind-the-scenes last minute diplomacy, as well as by public action and publications.

But this outcome really is only second-best to the ideal solution: A good directive that definitely prohibits patents on mere ideas and algorithms, keeping open the path for innovation in Europe. What killed the directive in its current form was not a resounding "no" by parliament to the idea of software patents. Rather, it was the fact that the big conservative EPP block swung around to rejection when they saw that they would not get as much patentability as they wanted.

What does this imply for the future? Better keep those "No Software Patents" banners on your websites. The topic will be back (although probably not before the summer is over). . . . Now that the official route for legalising software patents in Europe is closed, the lobbying efforts will shift to the dark back alleys of Brussels. The public eye will find it hard to follow, as will underfunded public interest NGOs, as negotiations shift from official meeting rooms into expensive restaurants.

Nonetheless, this is a pretty good day for all of us. At least, worse has been prevented. But we will have to watch out. If we don't, the interests of a few big companies, not all of them entirely rooted in Europe, might yet prevail over the the needs of the European people.

My favorite quotation of the day, Steve Ballmer:

"There is important innovation coming out of the software industry,'' Steve Ballmer, chief executive of Microsoft Corp., the world's largest software maker, said in Paris today before the parliament vote. "We think that innovation needs to be protected.''

I will translate for you. I take that to mean: they would like to be protected from innovation by others.

Yesterday, when it was clear the vote would be a big No, Mark Webbink of Red Hat and others reacted with qualified satisfaction:

Thomas Vinje, a partner at the Clifford Chance law firm whose clients include Red Hat andOracle, said, "The open-source software business model would have been seriously threatened" if the tighter law was adopted. He welcomed the moves to reject the proposed directive. "Big money has lost," he said.

Europe pioneered the concept of open-source software development, and its supporters have argued that the only way for Europe to catch up with the United States in software is by nurturing the open-source movement.

"We are quite pleased with today's debate," said Mark Webbink, Red Hat's senior legal counsel, speaking from Strasbourg. "It may not be the most positive outcome, but it's a close second."

The Microsoft-Nokia folks also wanted the vote to be no, don't forget, and here is why:

"Rejection would be a wise decision because [approving the directive with the amendments] could have narrowed the scope of patenting," said Mark MacGann, director-general of the European Information Technology and Communications Association (EICTA), an industry group representing big vendors including Microsoft, Nokia and Siemens.

This way, individual countries continue to approve patents as they were before. However, they wanted EU harmonization, and they have failed. When does Microsoft not get its way? This is huge.

Would you like to see some of the lies the other side told? Here you go. It's disgusting. More mainstream opposition.

You might be interested in this statement from the Butler Group on the CIID, issued just before the vote:

The debate over the patenting of software that is currently in progress in Europe is approaching a critical stage, says Butler Group. The European Council has ignored the European Parliament's rejection of the directive, and the legislation, promoted by the Council as the Directive over the Patentability of Computer-Implemented Inventions (CII), faces the councils' vote of approval in the European Parliament today. If approved, it would mean an EU-wide patent protection scheme for any computer-based invention.   

"Thus far, the EU Council has taken a rose tinted view of patent practice in the U.S.," says Michael Azoff,* Senior Research Analyst with Butler Group, Europe's leading IT research and advisory organisation. "It is attempting to push Europe in the same direction, serving the interest of some large multi-nationals but at the expense of what is beneficial for European society. The U.S. model of software patents, driven as it is by opportunism, represents a serious threat to innovation. There are no economic advantages to be gained through software patents, only a greater power vested in companies that can afford to battle daily in courts, supported by teams of patent lawyers."

Here are three press releases, the FFII press release, then Free Software Foundation Europe, and then EICTA, and then the Rocard speech to Parliament:



Parliament says No to Software Patents

Strasbourg, 6 July 2005 -- The European Parliament today decided by a large majority of 648 votes to reject the directive "on the patentability of computer implemented inventions", also known as the software patent directive. This rejection was the logical answer to the Commission's refusal to restart the legislative process in February and the Council's unwillingness to take the will of the European Parliament and national parliaments into account. The FFII congratulates the European Parliament on its clear "No" to bad legislative proposals and procedures.

This is a great victory for those who have campaigned to ensure that European innovation and competitiveness is protected from monopolisation of software functionalities and business methods. It marks the end of an attempt by the European Commission and governmental patent officials to impose detrimental and legally questionable practises of the European Patent Office (EPO) on the member states. However the questions created by this practise remain unsolved. FFII believes that the Parliament's work, in particular the 21 cross-party compromise amendments, can provide a good basis on which future solutions, both at the national and European level, can build.

Jonas Maebe, FFII Board Member, comments on the outcome of today's vote:

"This result clearly shows that thorough analysis, genuinely concerned citizens and factual information have more impact than free ice-cream, boatloads of hired lobbyists and outsourcing threats. I hope this turn of events can give some people faith again in the European decision making process. I also hope that it will encourage the Council and Commission to emulate the European Parliament to improve transparency and the ability of stakeholders to participate in the decision-making process irrespective of their size."

Hartmut Pilch, president of FFII, explains why FFII supported the move for rejection in its voting recommendations:

In recent days, the big holders of EPO-granted software patents and their MEPs, who had previously been campaigning for the Council's "Common Position", joined the call for rejection of the directive because it became clear that the 21 cross-party amendments championned by Rhoitová, Buzek, Rocard and Duff were very likely to be adopted by the Parliament. It was well noticeable that support for these amendments or a substantial part thereof was becoming the mainstream opinion in all political groups. Yet there would not have been much of a point in such a vote. We rather agree to the assessment of the situation as given by Othmar Karas MEP in the Plenary yesterday: a No was the only logical answer to the unconstructive attitude and legally questionable manuevers of the Commission and Council, by which this so-called Common Position had come about in the first place.

The FFII also wishes to thank all those people who have taken the time to contact their representatives either by email, phone or in person. We also want to thank the numerous volunteers who have given so generously of their time and energy. This is your victory as well as the Parliament's.

Background information and further news

* 21 cross-party compromise amendments [PDF]
* FFII voting recommendations for MEPs at today's plenary vote [PDF]

* Practise of the European Patent Office

* Karas speech in the plenary yesterday

* Wallstreet Journal reports prominently about Lehne's conflicts of interest

* Stay tuned to our news ticker


Here is the Free Software Europe's press release:

No software patents in Europe

Wednesday July 06, 2005 (12:30 PM GMT)

By: Free Software Foundation Europe

        Press Release - After years of struggle, the European Parliament finally rejected the software patent directive with 648 of 680 votes: A strong signal against patents on software logic, a sign of lost faith in the European Union and a clear request for the European Patent Office (EPO) to change its policy: the EPO must stop issuing software patents today.

"This outcome does not affect patents on high-tech inventions in any way," explains Stefano Maffulli, Italian representative of FSFE: "High-tech innovation has always been patentable, and even if the directive had been passed with all proposed amendmends, it would have remained patentable. It is important to point this out because the proponents of software logic patents have tried to confuse people about high-tech inventions being subject of this directive."

FSFE's president, Georg Greve adds: "The parliament understood this when it amended the directive in the first reading to keep high-tech innovation inside and software outside the patent system."

"Unfortunately, the council of the European Union ignored this decision of the Parliament and removed those amendments. Many MEPs were appalled at this obvious corruption of democratic process that day and seem to have lost faith in seeing their amendments treated with more respect this time."

"Rejection of the directive became the very last option to send a clear and strong signal against software patents in Europe," Greve continues. "The Free Software Foundation Europe commends the European Parliament on this decision: in the interest of harmonisation we would have preferred a directive along the lines of the first reading, but we understand that rejection became the last realistic option to avoid doing irreparable harm to European economy."

Jonas Öberg, vice-president of FSFE: "This reaffirms the 1973 European Patent Convention (EPC), which excludes software from patentability. The European Patent Office (EPO) has largely ignored this central convention and granted approximately 30.000 software patents in the past years: this must stop today! The EPO should not be allowed to further ignore European policies!"

Georg Greve explains the proposal of FSFE: "Much trouble was caused by the inability of the European Union to hold the European Patent Office responsible for acting against agreed-upon policies: unlike other parts of a democratic executive, the EPO is not liable for the decision it takes. We propose to establish an EPO supervision instrument that holds the EPO management liable for its decisions and prevents further patent system degradation."

About the Free Software Foundation Europe:

The Free Software Foundation Europe (FSFE) is a charitable non-governmental organisation dedicated to all aspects of Free Software in Europe. Access to software determines who may participate in a digital society. Therefore the Freedoms to use, copy, modify and redistribute software - as described in the Free Software definition- allow equal participation in the information age. Creating awareness for these issues, securing Free Software politically and legally, and giving people Freedom by supporting development of Free Software are central issues of the FSFE. The FSFE was founded in 2001 as the European sister organisation of the Free Software Foundation in the United States.


Here is EICTA's press release:

EICTA, the industry body representing Europe's large and small high tech companies, today welcomed the European Parliament decision on the CII Patents Directive. This decision will ensure that all high tech companies in Europe continue to benefit from a high level of patent protection.

Commenting on the outcome of today's vote, Mark MacGann, Director General of EICTA, said:

"This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe.

Parliament has today voted for the status quo, which preserves the current system that has served well the interests of our 10, 000 member companies, both large and small.

EICTA will continue to make the case throughout Europe for the contribution that CII patents make to research, innovation and to overall European competitiveness."

All the European institutions and industry have worked hard and constructively on the issue of CII patents for some time. Europe's high tech industry will support the efforts of the European institutions to find broader improvements to the European patent system that will particularly benefit the interests of smaller companies.


Rocard speech, in French:

Merci M. Le Président. M. Le président, mes chers collègues, selon toute vraisemblance, cette assemblée va dans 2 minutes, 3 minutes, rejeter le projet de directive concernant la brévetabilité des inventions assistées par ordinateur. Tous nos grands groupes, et mêmes les petits d'ailleurs pardonnez-moi, ont pris cette décision mais pour des raisons contradictoires. Je n'ai donc ici ni mandat ni qualité pour commenter ces raisons, mais il est à cette convergence une signification commune. Sur le fond du sujet, nous sommes partagés à peu près moitié-moitié, avec une imprévisibilité totale du résultat en majorité relative, et une impossibilité bilatérale d'arriver à la majorité qualifiée. Chacun de nos blocs d'opinion préfère le rejet du texte à l'adoption des opinions de l'autre. Mais il y a surtout ici une colère collective et celle-là unanime de tout le parlement contre la manière inadmissible dont il a été traité par la Commission et le Conseil. (applaudissements) Mépris total, (applaudissements) mépris total voire sarcastique des choix fait par ce Parlement en première lecture, abscence totale de toute consultation de la part de la Commission dans la rédaction du projet de texte pour la deuxième lecture, tentatives répétées d'empêcher même le débat entre gouvernements au Conseil lui-même.

Dans le principe, c'est déja scandaleux. La crise que l'Europe traverse aujourd'hui comporte largement sa part d'insuffisances démocratiques. Le conseil a là une responsabilité écrasante qu'il a particulierement manifesté dans ce dossier. Que ce rejet lui serve de leçon. Pour la substance (applaudissements) Pour la substance, l'état de l'opinion telle que nous la représentons ici montre bien que le problème n'est pas mûr. C'est donc justement l'approfondissement du débat qui aurait permis d'arriver par maturation à plus de consensus. Sur ce sujet essentiel; quelques dizaines de milliards de dollars annuels d'enjeux et pourtant très difficile, une prise de conscience collective est à l'évidence en train de se faire.

Le rejet est à cet égard un message à l'Office Européen des Brevets. Le Parlement Européen a refusé de légaliser les récentes dérives de jurisprudence pour élargir le champ de la brevetabilité à certains logiciels. Si ces dérives devaient continuer, il parait clair qu'une majorité parlementaire émergerait alors pour les endiguer.

Merci mes chers collègues.

  View Printable Version

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )