Increased litigation and licensing costs could drive
European open-source software developers and small IT companies out
of business if the EU approves software patenting
laws.
"We are very afraid of litigation costs," said Jean-Paul
Smets-Solanes of software development company Nexedi Sarl at a
conference in Brussels organised by, among others, the Foundation
for a Free Information Infrastructure and Green Party Euro MPs.
A directive could force innovative companies out of business by
forcing them to pay licence fees to avoid infringing patent rights.
Smets-Solanes said big IT companies could buy IT patents and use
them to threaten legal action and block the sale of new
products.
"If we are trying to push our products, there are 10,000 patents
out there which any large company can buy and then say to us, 'Give
us your patent. We don't want you to sell your new product because
we want to include it on our server,'" he said.
Open-source software pioneer Bruce Perens predicted even grimmer
times for small companies.
"An increased regime of patent protection spells doom for small
and medium-sized enterprises engaged in software development in
Europe," he said.
Perens warned that tough patent protection would discriminate
against smaller companies in favour of larger ones, because big
companies would be able to acquire large holdings of patents and
charge other developers for using them, or swap them in "portfolio
bargaining".
"Larger companies can ignore each other's patents and engage
profitably in software development for which smaller companies have
to pay licensing fees," he warned.
Looking further ahead, Perens predicted that instigation of a
tougher patent protection regime in Europe would spark a wave of
litigation worldwide.
"Large patent holders have held off in enforcement until they
have patent protection in all major jurisdictions," he said. The
law would be the catalyst for a "tremendous shakeout in the
software industry".
Jim Bessen, director of innovation research at Boston University
School of Law, said that strict patent protection regimes did not
boost innovation. Instead companies acquired patent portfolios to
"block competitors and have a bargaining chip" that let them
"impose an innovation tax" on rivals.
According to Florian Müller, director of the Nosoftwarepatents
campaign, whose funders include Red Hat, there is only a "razor
thin majority" in favour of the new patent directive agreed by the
Council of Ministers in May. Müller said he hoped the directive
would be challenged before it was formally adopted, especially by
the countries that joined the EU in May.
Many speakers at the conference also stressed the need for
legislation to protect interoperability, especially by continuing
to allow reverse engineering. Unless the directive includes a
provision on interoperability "all is lost," said Simon Phipps, Sun
Microsystems' chief technology evangelist.
The European Parliament will give its views on the Council
position early next year. It cannot start work on the file until it
receives translations of the text in the EU's 20 official
languages. Under the EU's codecision procedure, the Council and
Parliament must compromise over the text's final wording.
Simon Taylor writes for IDG News Service