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To read comments to this article, go here
EU SW Patent Aftermath
Thursday, July 14 2005 @ 02:24 PM EDT

BusinessWeek's Andy Reinhardt is very distressed about the failure of the EU to pass a software patent directive. While I don't share his distress, obviously, I thought you should read what he writes because I've been looking for someone to express that side's viewpoint in a way that isn't positively silly or dishonest. His commentary is neither, and some of his proposals are at least sensible.

He does write a couple of things that misunderstand some things, though, that I would like to explain to him.

He writes:

CONFUSION TRIUMPHS.

Given that perspective, the failure of European legislators (and lobbyists) to craft a compromise verges on the tragic. They could have started by agreeing that embedded software deserves protection, which would have helped thousands of small manufacturers whose innovations could now be subject to more skepticism if the key breakthrough is achieved through programming.

Likewise, a clear procedure for peer review, rapid challenges, and quick publication of patents would have created a model system the U.S. might have emulated. Last but not least, Europe could have gone on record saying that some kinds of software, including general-purpose programs and algorithms, are not patentable.

Instead, we've got: a European Patent Office whose mandate is confused and whose 30,000-plus software patents may be slowly overturned by European courts, a patchwork of national regulations that protect only applicants filing within the jurisdiction, and the possibility that some of Europe's largest and most successful tech companies will see the market value of their patent portfolios collapse.

There is no doubt that the anti-software patents side, most of them, would have gladly accepted such a package. He blames both sides, accusing them of intransigence, but really, the amendments were offered as a compromise and it was the Microsoft/BSA/Nokia side that refused to compromise. I feel safe in saying that they most specifically did not want a ban on patenting algorithms. That is the part he doesn't grasp. Then he writes:

What of the small European businesses and innovators that patent opponents wanted to protect? They must now hire lawyers and pay fees to file patent claims in 25 different countries to gain protection just within the EU. Their enforcement costs could skyrocket. And they're no better protected against counterclaims by U.S. or Asian rivals holding patents in those places than they were before.

No, Andy. That isn't at all what they must do. For one thing, they can't afford to play the Rich Boys Patents game. But deeper, as far as FOSS is concerned, they don't want any patents at all. Those in the prosoftware patents group always talk about patents as if you were a patent owner. FOSS developers are not. Mostly they can't afford to be, but even if they could afford them, there is a serious opposition to anything that prevents a free sharing of knowledge and code. As Andy recognizes, software patents endanger that method of development directly. Why would any FOSS developer not fight for what is in his best interest?

The real problem is that we have competing interests. To pretend that FOSS concerns are extremist, when they are central to FOSS survival is to miss the point.

Speaking of patents, Microsoft was just found guilty of infringement. Again. And they settled with Alacritech, after it got a favorable preliminary injunction in April that blocked Microsoft from putting a networking technology, "Chimney", which Alacritech argued was based on its patented code, into new versions of Windows Server 2003 and Longhorn.


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