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Softwarepioniere gegen EU-Patentplaene
- To: email@example.com
- Subject: Softwarepioniere gegen EU-Patentplaene
- From: PILCH Hartmut <firstname.lastname@example.org>
- Date: Sat, 19 Jun 1999 11:34:56 +0200 (CEST)
- Comment: This message comes from the debate mailing list.
- Sender: email@example.com
(wird noch auf www.eurolinux.org gespiegelt)
10 European Industry Leaders
Raise Concerns about Software Patents
_For immediate release_
_10 European Industry Leaders have raised concerns about the ongoing
legal process to update the European Patent Law in order to extend the
range of application of software patents. According to pioneers of the
software industry, the use of patents to protect software may actually
lead to less innovation, less competition and eventually job cuts in
the European Software Industry instead of generating new businesses
and stimulating innovation as it is often believed. In order to
promote innovation, competition and new businesses in the IT industry,
Europe should be very careful with the application of software
Although article 52.2c of the München Convention states that, in
Europe, programmes for computers are not patentable, the European
Patent Office (EPO) has been granting for the last 10 years an
increasing number of patents that can be used to protect programming
techniques, computer programmes and software. What may sound as
contradictory at first sight, is actually perfectly legal since
article 53 of München Convention makes it possible to patent
industrial inventions which are based on innovative programming
techniques. Such patents are sometimes called "software patents"
because they protect software even though they are not patents on
software as such.
Software Patents granted by the EPO to protect programming techniques
were very few 10 years ago and were mainly used by large industrial
corporations to protect, for example, computerized oil exploration
techniques. In such cases, it was quite reasonable both in terms of
contents and in terms of economic efficiency. However, the EPO
jurisprudence has evolved a lot under the continuous pressure of
lawyers and patent experts who have been trying to patent in Europe
what they could already patent in the USA. One must remember that the
US patent law allows to patent anything "useful and non obvious"
which, according to the US Supreme Court, may include business methods
and mathematical methods whereas in Europe, only inventions which have
"industrial application" are patentable.
But this difference in terms of law was not sufficient to protect
Europe from the abuse of software patents, as it is already the case
in the United States where, according to Luc Hatlestad in Red Herring,
"Industry leaders are putting startup through legal hell - and
dampening innovation". The recent case of IBM patent application No
96305851.6 shows that the EPO is now used to grant patents on
extremely elementary, if not obvious, programming techniques for which
patenting has no macroeconomic rationale. Since patents last 20 years,
and because the WTO TRIPS agreements do let them last less, the whole
European Software Industry may get paralysed.
The following opinions were expressed by European Industry pioneers
who call for a more careful use of Software Patents.
According to Ralf Schoebel of Intradat, creator of the first
professional electronic commerce solution for Linux and inventor of an
innovative electronic commerce programming language, "there are so
many new patentable programming techniques emerging every day in the
software industry that it is really impossible to keep up to date". As
a consequence, "any large software package is likely to infringe
dozens of software patents held by companies such as IBM or Lucent"
says Tatu Ylönen, Founder and CEO of SSH Communications Security Ltd,
and author of the popular SSH (Secure Shell) software, a proposed IETF
standard. Jean Ferré, CEO of ARISEM, makers of very innovative
indexing and searching software, adds that "it is impossible to manage
a development process in which one has to check for each algorithm
used in a software whether royalties should be paid to someone else".
Frank Hoen, CEO of NetPresenter and first inventor of Internet push
technology, thinks that "patents on software are potentially very
damaging to SMEs". According to him, "Europe is already lagging behind
in software development. If developers now also need to worry about
software patents, Europe will fallback even further". And Haavard
Nord, CEO of Troll Tech, makers of the Qt advanced frameworks declares
that he is "strongly against software patents because they prevent
competition and make life harder for small and medium businesses"
while Ismael Ghalimi, CEO of ExOffice, providers of advanced Java/XML
technologies in open source, is in general "strongly against any form
of patent for software technology".
Software Patents also have negative impact on standardisation. In
France, Senator Laffitte claims that "Governments should not use
patented standards to exchange information with citizens" since that
would contradict the principle of free access to the public
information defined by the French Law. And in a meeting organised by
ISOC France during the Internet Fiesta at the French Senate, a
consensus of specialists agreed that "Patents on Internet standards
should be free or banned".
Together with Linus Torvalds, AFUL, FFII and the EuroLinux Alliance
for a Free Information Infrastructure consider that "patents as they
stand now are a real problem". The general opinion, best summarised by
Michael Widenius, coordinator of the widely awarded MySQL commercial
database, is that "Software patents are more harmful than useful". M.
Ylönen adds that "Innovation in information technology would be best
served without software patents". And ISOC France stated in its yearly
meeting in Autrans, "the European Law should not accept patents on
software unless it is proved that patents do efficiently protect
innovation, competition and free software".
However, the 19 European member States of the European Convention on
Patents are considering to further extend the application of software
patents by removing programmes for computers from the list of
exceptions in article 52.2c of the München convention. Such a move
would dramatically increase the risks taken by software editors which
could be sued directly for patent infringement instead of indirectly
as it is the case now. It would also open the way to a new kind of
patent : Electronic Commerce and Business Method Patents.
A detailed case study shows that it would be possible to use patents
to get a monopoly on the use of a business method or an electronic
commerce method by patenting as such its implementation in a programme
for computers. As an example of what this would mean, US citizens who
are selling books on the Internet are being increasingly approached by
US lawyers who claim that they are infringing some patent although
they are just selling books. Tim Berners-Lee, creator of the Web,
acknowledged during the Eighth International World Wide Web Conference
in Toronto that "the bar for innovation seems too low. You are able to
take an existing social practice and write software to do it and get a
patent" and he added that "The challenge is to prevent us from
becoming completely paralysed by fear, uncertainty and doubt,"
Ron McQuaker, Director of Exxel Consultants Ltd, finds that "Although
there are strong pressures to extend patent protection to computer
programs as such, the case is not yet made out well enough to convince
large sections of the software industry. It is not enough to argue
that other forms of invention enjoy patent protection, so why not
software. That statement is too simplistic".
_According to the above collection of opinions expressed by Industry
Pioneers, in order to promote innovation, competition and new
businesses in the IT industry, Europe should be very careful with the
application of software patents. "It would be quite regrettable for
Europe not to take this occasion to create a new model for
intellectual property_" notices Guido Gualandi; CEO of Ziggourat and
maker of 3D software.
Jean-Paul Smets (AFUL) - firstname.lastname@example.org
Hartmut Pilch (FFII) - email@example.com
The EuroLinux Alliance for a Free Information Initiative
(www.eurolinux.org) is a coallition of companies and associations to
promote and protect the use of Linux, Free Software and Open Standards
at the European Level.
[INLINE] The freepatents campaign (www.freepatents.org) is a EuroLinux
initiative to protect Europe from the misuse of Software Patents. The
freepatents web site includes most references to economic issues of
[INLINE] AFUL (www.aful.org) is the French Speaking Linux and Free
Software Association, a French association of users, developers and
companies to promote and protect the use of Linux, Free Software and
[INLINE] FFII (www.ffii.org) is the Foundation for a Free Information
Infrastructure, a German association of users, developers and
companies to promote and protect the use of Linux, Free Software and
[INLINE] APRIL (www.april.org) is a French Speaking Free Sofware
Association, association of users, developers and scientists to
promote and protect the use of Free Software, Open Standards.