[DMCA-Activists] IHT: EU SW Patents Under Siege

[Seth Johnson]

> http://www.iht.com/articles/528268.html


Europe's Software Patent Policy Under Siege  

By Jennifer L. Schenker
Wednesday, July 7, 2004


The adoption of a European Union law on software patents could be in doubt
after accusations of missteps and mishaps during a May 18 meeting of the EU
Competitiveness Council in Brussels. 

Officials in a number of European countries say that votes cast by ministers
during the meeting to hammer out political differences did not reflect the
position of their governments. 

Among the accusations: that the Dutch minister misinformed his national
Parliament about the directive’s status; that a stand-in for the Danish
minister was coerced into a "yes" vote; that the German minister accepted 
last-minute changes to amendments made by his own country that were contrary
to the wishes of the government; and that the Polish government, which
originally abstained, was not asked for its opinion when the final agreement
was recorded. 

The political storm, which has spread to national parliaments in Germany and
Denmark and provoked questions about the EU directive in Poland and
Portugal, is the latest twist in a bitter fight between large corporations
with significant research investments and scores of patents and small and
midsize software companies, academic institutions and supporters of "open
source" software, who oppose software patents.

Open-source software is typically  developed by programmers who volunteer
their time, is commercially unlicensed and is distributed without charge on
the Internet. Opponents of software patents want to make sure software code
cannot be patented at all, allowing developers to create programs without
fear of lawsuits or license fees. 

Business generally wants software to be patentable across the EU, the way it
is under U.S. and Japanese law, in order to  preserve their right to collect
royalties and protect work they have invested in. 

Both camps say the consequences for Europe will be dire if the other side
wins.
 
In what could be an unprecedented move, the Dutch Parliament last week asked
to change the "yes" vote that it  cast at the May meeting to support making
software patentable throughout the European Union. Motions have been
introduced in parliaments in other countries, including Germany, to consider
a change in their own votes.
 
The hope of some opponents of patents on software is that this will provoke
a new vote by the entire Competitiveness Council — an economics advisory
group that is part of the EU Council of Ministers — and reverse the outcome,
making software ineligible for patents. The council can make binding
decisions, provided it is not blocked by the European Parliament.
 
"There were a lot of abstentions  already, so we think if we can show that
Holland has changed its vote, it might have a domino effect," said Arda
Gerkens, a representative of the Socialist Party in the Dutch Parliament who
helped spearhead the move to have the Netherlands change its vote.
 
In September, the European Parliament introduced amendments to a proposed
directive on harmonizing patent law across the EU. That version, which
opposed software patents, was tentatively passed on a first reading. But
further amendments were made by the Council of Ministers and were presented
as a "political compromise" when they actually would legalize software
patents, opponents of software patents say.
 
The directive, with the council’s amendments agreed to in May, goes back to
the European Parliament for a second vote in the fall, which if approved
would be binding on member governments.
 
The Foundation for a Free Information Infrastructure, a nonprofit
association in Munich that says it represents 3,000 companies opposed to
patenting software in Europe, accuses the Coun cil of Ministers of not
taking national governments’ opposition to software patents into account,
and thus contends the vote in May approving software patents is invalid.
 
The foundation’s president, Hartmut Pilch, argues that the council said its
amendments incorporated the European Parliament’s work when they did not,
that it misrepresented the real thrust of the directive to national
parliaments and that it falsely claimed that the current version of the
directive is favorable to small and midsize companies.
 
Some large companies say the directive should stand as is, claiming that it
does not hurt small and midsize companies but would hurt Europe as a whole.
 
"We support this new EU directive as proposed by the Competitiveness
Council, and we hope it will be approved by the European Parliament," said
Ruud Peters, chief of Philips’s intellectual property and standards
division.
 
Further changes, he said, "would have major implications for all innovative
companies in Europe, and for the European economy in general, and will lead
to the loss of thousands of high-quality jobs in R&D in Europe." 

If the new directive does not go through as it is, "we prefer to have no
directive at all," Peters  said.
 
The Foundation for a Free Information Infrastructure argues that the
directive should not be allowed to stand as is because of the voting
miscues.
 
Gerkens, the member of the Dutch Parliament, said the Netherlands economics
affairs minister, Laurens Jan Brinkhorst, led the Parliament to believe that
the directive with the European Parliament amendments was being
rubber-stamped by the Council of Ministers. 

Gerkens’s bid to have the Dutch vote changed to a "no" did not pass last
week. But another resolution calling for the vote to be neutral rather than
a "yes" did pass. 

Even now, though, the interpretation of what the Dutch government is going
to do depends on whom one talks to. 

Gerkens said the Parliament instructed the Netherlands’ state secretary to
send a letter to the Council of Ministers informing it that the country had
changed its vote. The Netherlands took over the presidency of the EU on July
1. 

But a Dutch government spokesman  said that was not how Brinkhorst had in
terpreted the Dutch Parliament’s move.  

"Mr. Brinkhorst doesn’t feel obligated to change the vote from a ‘yes’ to an
abstention in order to take into account the concerns expressed by the Dutch
Parliament," said Joop Nijssen, a spokesman for the Dutch EU mission in
Brussels who spoke on behalf of the minister. 

He said the minister planned to ask the European Parliament to take the
Dutch Parliament’s concerns into consideration when the directive comes up
for a final vote. 

If the Competitiveness Council affirms its May 18 political agreement, the
amended directive that does effectively call for software patents will go
back to the European Parliament for a second reading. 

In November, the chief executives of Nokia, Philips, Siemens, Ericsson and
Alcatel warned the EU that ¤15 billion, or $18.5 billion, of their combined
annual research and development spending could be wasted if software is
freed from patenting. 

Opponents say software patents will kill innovation and wipe out many of
Europe’s small and midsize companies.


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