Europe's software patents threatens free speech in an information society
By Peter Somogyi
HUNGARY, 30 June 2005
In September 2003, the European Parliament voted to reaffirm that software wasn’t patentable. In the meanwhile, however, the Commission and Council along with the European Parliament’s Committee for Juridical Affairs have ignored this vote and have gone ahead set new precedents in undemocratic law-making.
This isn’t just a theoretical concern; there are serious practical fallouts too.
Litigations against Free and Open Source Software (FOSS) based VoIP telephony users are already on their way. Voice over internet protocol, also called IP telephony and internet telephony, refers to the routing of voice conversations over the internet or any other IP network.
It brings in a range of benefits — lower per-call costs, a wider range of features and facilities (like audio conferencing), freer innovation, lower infrastructure costs, higher quality of voices, and ‘future proof’ hardware since functionality is software-based.
But some GNU/Linux-based Asterix IP phone software users are currently being sued for infringing USPTO (United States Patent and Trademark Office) patents.
Asterisk is a complete PBX in software. It runs on Linux and provides all of the features you would expect from a PBX and more. Asterisk does voice over IP in many protocols, and can inter-operate with almost all standards-based telephony equipment using relatively inexpensive hardware.
The patents in question have similar European equivalents: ‘systems and methods for storing, elivering, and managing messages’ (EP0870238) and ‘filtering computer network messages directed to a user’s e-mail box based on user defined filters, and forwarding a filtered message to the user’s receiver’ (EP1010084).
This current version of the European directive would certainly give a green signal to the enforcement of these and other similar patents in Europe.
The Asterix example above is just the tip of the proverbial iceberg; when seen as the big picture, control over the tools used by the much talked of ‘information society’ is at stake.
Over 30,000 patents granted
In recent years, the European Patent Office (EPO) has, in contradiction to the letter and spirit of the written law, granted over 30,000 patents on rules for computing with conventional data processing equipment. These patents are as broad, as trivial and as damaging as their US counterparts.
In September 2003, the European Parliament voted to reaffirm the exclusion of software from patentability.
It did so by codifying the original interpretation of the law, and to clarify the terminology of the TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty by recourse to the traditional theory of technical invention, as found especially in the German case law from 1976 to 2002.
This vote came after 19 months of deliberation in three committees and was based on broad participation, and an extensive research of literature.
Yet the Commission and Council have refused to even discuss the problems addressed by the Parliament. Instead they have attempted to force the discredited European Patent Office (EPO) practice through a second reading in a new parliament, with tighter time-constraints and higher majority requirements.
The Council’s text superficially conveys the impression that it excludes software patents; but in fact, it only makes existing exclusions meaningless and prevents any effective limitation of patentability.
Most of the wordings used do not serve any purpose, apart from soothing the conscience of ministers and parliamentarians.
The Council’s decision-making was dominated by the very civil servants who run the EPO, and pushed through against the will of national parliaments.
During the process, both the Council and the Commission have set troubling new precedents for undemocratic lawmaking in the EU.
Separation of powers guaranteeing democracy has failed, given that the executive power is represented by the EPO by default and the judiciary branch is also in the hands of the EPO through the decisions they have brought by themselves and have codified in case-law.
Legislative power of the EPO is also apparent, as demonstrated during the formulation of the current wording of the patent directive.
Adopting the directive in its current form monopolizes control over the tools used any ‘information society’, directly threatening the free and unhindered access to information and, hence, even free speech.
Two of the three main principles of the European Union are hurt by the monopolization of software: the free movement of ideas and of goods.
This is our final chance to alter this directive; it is essential that we persuade members of the European Parliament (MEPs) to get their votes right.
For further information, visit www.ffii.org
Peter Somogyi is an engineer who “spent some time with free software”. Says he: “Seeing a new law coming that is directly threatening open communication systems (among other things), I am trying to do what I can to prevent it.” He can be contacted via email jerry at zpok.hu