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[FYI] Patent lobby get in early for EU consultation process


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Patent lobby get in early for EU consultation process  

By: Graham Lea  

Posted: 29/10/2000 at 19:10 GMT  

The European Commission has launched its consultation on software 
patents, but the accompanying "independent study" produced on behalf 
of the Intellectual Property Institute (IPI) in London is biased in 
favour of the patents establishment, as well as being ill-informed 
about the potential consequences for Europe.  


The IPI study says it addresses the economic impact of patentability 
of computer programs, but the study is deeply flawed in several ways. 
The conclusion that "there is no evidence that European independent 
software developers have been unduly affected by the patent positions 
of large companies or indeed other software developers" ignores the 
simple fact that in Europe the threat is in the future, when 
coincidentally IPI's members will start collecting fees for the 
enforcement of software patents.  

The study admits that in the US "there is abounding evidence that the 
profitability and growth of independent and SME software developers 
in the States has often been to a significant extent dependent on the 
possession of patent rights... there is deep concern that patents are 
being granted on trivial, indeed old, ideas... that patents may 
strengthen the market position of the big players... that the 
computer program related industries [yuk - could they mean software 
industry?] are examples of industries where incr emental innovation 
occurs and that there are serious concerns whether, in such 
industries, patents are welfare enhancing." Quite so.  

Screw the GNU? For its part, the EC Internal Market Directorate has 
also missed the point in suggesting that it is the view of the open 
source movement that it would be ill-served by a software patent 
regime: the plain truth is that the whole software developer 
community is disadvantaged by software patents, as well as all users 
of software - from multinationals to consumers. It is true that 
smaller companies will be disadvantaged more because they lack a 
legal department and a patent portfolio with which to fight claims. 
The open source community just happens to be more articulate than 
commercial software developers, and of course has an admirable model 
to protect software in the form of the GNU General Public Licence. 
Little consideration in the debate so far has been given to sentiment 
against the open software movement by the major proprietary software 
developers, but it would be surprising if this thought had not 
crossed their minds as a sweet form of revenge.  

It is not unreasonable for the Commission to wish to harmonise 
national patent laws, although the overlap in functionality between 
national offices and the EPO is rather silly. What the Commission has 
not done is to study in sufficient detail the potential impact on the 
European economy, and particularly on the European IT industry. 
Although there are a few high-profile US cases of attempts at 
software patent enforcement so far, there can be little doubt that 
heavy enforcement will come. Patent lawyers must be rubbing their 
hands, waiting for the starter's gun from their clients, although the 
more reputable law firms will perhaps realise that attempting to 
enforce software patents may well be viewed in the same way as are 
most shareholder class actions in the US - a rather grubby practice 
involving rather small law firms. And with Amazon.com in the queue at 
the EPO for a European one-click patent, wouldn't it be interesting 
if for once the EPO did a proper job on the prior art and turned this 
one down?  

It is a good thing that at last the Commission has embarked on this 
consultation exercise, but the strength of the lobbying by the 
patents industry is so great that the voice of the IT industry may be 
hardly heard. It's at times like this that he lack of a strong 
European IT trade association is most felt. Realistically, it is 
impossible before the Munich meeting to give proper consideration to 
the software patent issues that will have such a profound effect on 
European businesses.  

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