12 May 2003

The Europatent Debate

The most important political issue affecting the future of free software in Europe is moving towards a vote in the European Parliament this month. The Parliament will either accept or reject a proposal by the European Commission to alter European patent practice to conform with the US Patent and Trademark Office’s liberal granting of patents for “inventions” implemented in computer software. This threatens to bring US-style business-method and health-method patents to Europe. It also threatens open standards and the very existence of free software.

There is a crucial distinction between the way patent and copyright concepts interact with the free software idea. Copyright law, as the US Supreme Court has said, is primarily intended to cover expressions, not ideas. So if in a particular instance software copyright inhibits progress in making better, more reliable, or more effective software, the inhibition can be overcome: It is always possible for programmers to sit down and rewrite from scratch whatever program needs to be available in a freely-modifiable version. This may be time-consuming, but it cannot be forbidden. But patent law prohibits anyone from “practicing the teaching” of the patent—or using the technological ideas the patent describes—without license. It does not matter how you came by the idea the patent discloses, even if you invented it for yourself in complete ignorance of the patent and the prior art it references: Without a license you cannot embody your idea in any way covered by the patent’s often very general claims.

Software patents, then, can achieve the complete reverse of what the patent system is supposed to be for. Independent reinvention can be prohibited, and the owners of inferior programs of bad quality can prevent anyone from making better and more reliable versions. Indeed, they can make fundamental improvement in design all but impossible.

In the United States, software patents have already become a terrible problem. The US Patent and Trademark Office has granted patents on programming ideas with wild and uncritical abandon. Basic ideas that have been in use for decades have suddenly been awarded to one implausible claimant or another, who thus gains the leverage with which to threaten everyone else doing what has long been known and familiar in the trade. Commercial manufacturers respond by buying licenses, which are far less expensive than lawsuits, or by “cross-licensing” their own ridiculous patents in return for peace and quiet from the demands of other lucky lottery winners. But free software developers cannot afford to buy licenses.

Why this outpouring of patents? In the US, the standard for granting a patent is that the technological idea it contains must be novel, that is not already anywhere in use, and non-obvious, which means not an evident incremental extension or improvement to the body of knowledge readily available to those ordinarily skilled in the art. It is often said that the Patent Office has been unable to hire and retain examiners deeply knowledgeable in the art of programming, because competition for such people elsewhere in the economy has been so intense, and that the Office has therefore been easily led by outside patent lawyers to the conclusion that developments were novel and unobvious that were in fact nothing of the kind. Others have speculated, more darkly, that the bias towards issuing patents has been a form of covert government subsidy to politically-influential industries and firms.

Recent European developments do little to allay these darker concerns. The European Patent Office has been granting patents for “computer-implemented inventions” as unwisely as the US PTO, and to the same “customers”: more than 75\% of the patents granted by the EPO for software inventions are to non-European enterprises. The Commission’s proposed Directive, if endorsed by the European Parliament, will institutionalize the recent practice of the EPO in all the member Patent Offices. Microsoft, IBM, and other large patent-holders will seek to embed their patented technologies in industry standards definitions, thus ensuring that anyone who implements basic industry standards must have a patent license. Free software can thus be excluded entirely from standards compliance, which naturally suits the Microsoft Monopoly very well.

For these reasons, the defeat of the Commission’s proposed directive in the European Parliament is of the utmost importance to the future of free software. The single most influential MEP on this issue is Arlene McCarthy of the UK, whose report to the Committee for Legal Affairs and the Internal Market (JURI) recommends adoption of the Commission Directive with additional “safeguards” to make sure that there will be no limit on the patentability of “useful ideas.” McCarthy and her colleagues need to hear from all users of free software on the importance of limiting the software patent plague. Readers concerned with this issue can find more information at http://eurolinux.org. Use your voice on behalf of freedom. Let your legislators know that Free Software Matters.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2003.05.12-00:00.00

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