Open-source lobby struggles in EU patent debate

More than 300 software developers and entrepreneurs opposed to granting patents on software programs attended a one-day...

More than 300 software developers and entrepreneurs opposed to granting patents on software programs attended a one-day conference at the European Parliament in Brussels, hosted by the Green Party.

The intention was to warn lawmakers of the dangers they see in passing a Europe-wide law on software patents. Patent protection, they argued, stifles innovation in software development among small companies and programmers by creating a legal minefield only the richest of corporations can navigate successfully.

The conference came a month before the proposed directive on software patents is to be debated formally for the first time in the European parliament. But some parliament officials believed the event may have caused more harm than good.

"They were preaching to the converted. They should have been speaking to MEPs that favour software patents," said one, who pointed out that the most important member of the parliament at this stage in the debate did not attend.

Arlene McCarthy, a member of the legal affairs committee responsible for choosing the amendments to the proposed law to be tabled at next month’s plenary session, said she had not been invited to the event.

Joint organisers of the conference from the European Free Alliance, a free software lobbying group, said they did invite McCarthy but admitted  that the invitation had not been sent until the beginning of this week.

A spokesman for the alliance said McCarthy had been invited to submit a statement to be read out to delegates, but she declined the offer.

McCarthy’s office said it did submit a statement but that it was never circulated at the conference.

"It’s not smart to snub the rapporteur on the lead committee responsible for guiding this debate. They won't have done themselves any favours by appearing to [disrespect] McCarthy," said one parliament official who requested anonymity.

McCarthy accused the conference organisers of not wanting to hold an open debate, adding that she will discard extreme amendments submitted by Green MEPs. "I won’t accept amendments that exclude patentability per se."

McCarthy, along with many MEPs from a wide range of political parties, believed a Europe-wide law on software patenting is required to harmonise law across the 15 member states of the EU, and that European software developers will be at a competitive disadvantage to their American counterparts without patent protection.

However, she agreed with opponents of the draft law that it would be wrong to have the level of protection granted to developers in the US, where mundane software devices can be registered for patent protection.

"I want to make it harder to get patents in Europe than at present," McCarthy said, adding that the Green party would be "mad" to vote against the amended version of the draft she favoured.

But the message from the conference floor was clear. "We don’t want patent protection, thank you very much," said Robert Dewar, president of Ada Core Technologies, a small company based in New York with a division called ACT based in Paris, which sells programs and support mainly to defence companies such as Honeywell International.

"The way to win is to keep innovating, not relying on software patents," he said.

Dewar has acted as an expert witness for defendants in numerous patent infringement lawsuits. "As a small firm, you go unnoticed by the big software makers until you create something really special.
"Then you start to receive letters from patent lawyers representing big firms that either want to buy a licence to your software at a cheap price, or they simply want to drive you out of business so they can pick up your idea for next to nothing in the bankruptcy court after you have been sunk by astronomical legal fees," Dewar said.

"A patent suit is the one thing that could sink us." 

Laura Creighton, co-founder of Swedish groupware developer AB Strakt and of a British publishing software company called Reportlab, said, "If Europe adopts this software patent law I’m going to have to redirect millions of dollars I planned to invest in European software firms into a fund to cover patent infringement suits."

Creighton became a millionaire during the internet bubble and sold the bulk of her shares when prices were close to their peak in early 2000. She said she made her fortune mainly from e-Bay stock at a time when she herself was a software engineer. She now describes herself as a small-scale venture capitalist.

"I am the sort of person the European Union is looking for to help develop the European software market. Lawmakers should realise that this proposed law is putting me off," she said.

Creighton, Dewar and free software guru Richard Stallman, who also took part in the conference, all argue that the European lawmakers who aim to create a law that is more restrictive than the regime in the US are misguided.

If the directive is passed, "there will be the same surge in patent applications in Europe that occurred in the US in the late 1980s," Creighton said, pointing out that there are 30,000 patent applications already waiting to be legalised in Europe.

"They may want something short of what the US permits in terms of patentabilty, but the reality is that European patent law will drift down the same path," Creighton said.

Although she largely agrees with him, Creighton did share Stallman’s evangelical approach to the debate.

"We do need laws to make sure software developers get paid for their work, but patent law is the wrong way to do it because patent law only benefits the big developers," she said.

McCarthy said the legal affairs committee will meet on Monday to try to narrow the wide range of amendments being proposed by MEPs from both sides of the debate. Another meeting may be necessary on 20 May, ahead of a planned committee-level vote on 21 May and the Parliament-wide vote in early June.

The proposal for a law was drafted by the European Commission, the executive body of the EU, early last year. It would allow patents only for software applications of a technical nature, and it would not permit patents on business methods.

The US and Japan allow patents on a much wider range of software, and they both permit patents for business methods. Business methods include innovations such as one-click purchasing, for which the online retailer received a patent in the US in 1999.
Amazon used the patent to get an injunction against use of a similar purchasing feature by a rival,, but an appeals court lifted that injunction last year.

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