24 Nov 2004
The UK Stake in the European Patent Crisis
The events coming to a boil in the European Council and Parliament this month are a sign of the global maturation of the free software movement. The Foundation for a Free Information Infrastructure (FFII), the EuroLinux Alliance and the individual programmers and small to medium-size software businesses who have joined with them, have established our view about the dangers of patent law to innovation and freedom as a real force in European politics.
The European Commission’s Intellectual Property Section remains fundamentally committed against freedom, in the interests of the largest patenters and the software monopoly. And while the European Parliament modified the Commission’s proposed Patent Directive last summer, adding explicitly pro-freedom provisions against software patents, the Council of Ministers this May arranged an anti-freedom “compromise,” removing our amendments and replacing them with an even more aggressive pro-patent position. But the Council’s “common position” has now unraveled. The Dutch Parliament has internalized the European Parliament’s political division, voting to reverse its government’s position in the Council, and Poland has indicated that it will not support the “common position,” which under the new voting weights in the European Union deprives the Council position of its majority.
The next few weeks will be critical, as the Parliament and the Council attempt to bridge their differences, with national governments and major stakeholders on both sides of the negotiation attempting to influence the outcome. For free software users and distributors in the UK, the situation presents some features that have not received appropriate attention.
For most European participants from the Free World, the goal has been simple: “stop software patents.” Most of the European activists believe that without the Commission’s original Directive, the European Patent Office’s policy of granting patents on inventions embodied in computer software will be shown to be out of the bounds set by the European Patent Convention. For those who come from countries where domestic patent offices have not actively granted such patents either, stalemate is enough. Beating the Commission’s proposal would be sufficient to prevent issuance of such patents by either their domestic offices or the EPO. The enactment of the pro-freedom legislation that passed through first reading last summer would of course be even better.
But in the UK the situation is quite different. Already tens of thousands of UK patents on software-implemented “inventions” have been granted. Like such patents in the US, where the patenting system has totally escaped from appropriate control—a fact acknowledged by virtually all European parties, regardless of the position they take on European patent law—these UK “software patents” pose an acute danger to free software developers. Some will form the basis of any Microsoft-launched attack against free software in the UK, as the monopoly’s patents will in the US. But although the UK Patent Office doesn’t want to take a further step towards the US madness of “business method patents,” it is entrenched behind the theory of software inventions it currently has. Without the pro-freedom amendments in the European Parliament, in other words, software developers—and free software users who want public protection against Microsoft aggression through the patent system—will see the UK patent system not only stay dangerous, but grow worse.
The forces against freedom know perfectly well that stalemate means the expansion of software patenting in the UK. Protecting the supposed integrity of UK patent law against interference “from Brussels” has become the watchword of those who want to use the patent system against freedom. As a spokesman for the UK Patent Office recently put it, “if the directive had gone through with all the proposed amendments, there would have been plenty of patents that would no longer have been valid.” The Office and its multinational clients, including the monopoly, wouldn’t like that.
Unlike their colleagues on the Continent, this situation leaves UK freedom advocates out in the cold if the European patent crisis reaches stalemate. The cause of freedom in the UK needs more for a strategy than “Just Say No.” Your MPs as well as your MEPs need to understand that the same dangers from patenting software that exist in Europe exist in the UK, and that the time has come for change.
Meantime, in the European movement for freedom, the UK part of the Free World needs the support of its European colleagues for a solution that doesn’t leave them out. We should be talking collectively about larger solutions than just stalemate, solutions which might bring about agreement with industrial parties who are also tiring of the harm bad patent law is doing to the IT landscape. The long term health of the free software movement depends, as Richard Stallman has said for years, on defeating the threat posed by patent traps. And in the larger scope of European policy, as everyone can see, free software matters.
This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.
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2004.11.24-00:00.00
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