BW Online | December 11, 2000 | The Struggle against Software Patents

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DECEMBER 11, 2000

FROM LE MONDE INTERACTIF

The Struggle against Software Patents
Foes of proposed new rules to allow such patents are lobbying hard for info tech freedom

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The Computer Age constantly brings up issues governments must deal with, and now in Europe, a battle is brewing over the patenting of software programs. Following the initiative of the Eurolinux Alliance and of European Parliament member Gilles Savary, various patent opponents met last month at the European Parliament in Brussels and have formed a lobby in Europe advocating freedom of information. Anticipating an important vote later this month by the European Office of Patents (OEB), 30 or so patent opponents had a chance to make their voices heard.

Indeed, the imminent vote by OEB is important, for it will determine how information technology develops in Europe. In the past, the European Union's position on software patents has been unclear. On the one hand, OEB has made a series of decisions since 1986 that accept software patents under certain conditions, such as newness or possible industry applications. But according to article 52 in the Munich convention, software programs aren't eligible for patents.

MAIN VICTIM. The vote is meant to set things straight once and for all. And it has been up to the new lobby to convince OEB of the absurdity of patenting software, especially since the Internet and innovation figure prominently in the EU's ambitions. "Computing is...a language that has an important role to play in the democratization of information technology and the equality of opportunities," Savary says.

The decision could have a big influence on innovation in Europe. For example, smaller and midsize companies, expected to be important sources of employment in the years to come as well as driving forces in the digital economy, need to exchange knowledge in order to innovate. And these same companies can't pay for a team of lawyers to come to their defense in the event of a patent battle.

What's more, a law permitting software patents would also have a major impact on the open-source movement. Open source not only provides free access to a program's code but is also important in allowing Internet access. In fact, the Web's entire infrastructure and most of its technologies are dependent on open source. Says Eitel Dignatz, a German IT consultant, "If open source isn't the only victim of software patents, it will certainly be one of the main victims."

R&D DECLINES. To understand the potential problems software patents can cause, it's important to look to America. At the meeting in Brussels, two American economists from Massachusetts Institute of Technology, James Bessen and Erik Maskin, traced the history of software patents since their introduction in the 1980s. The number of software patents in the U.S. has skyrocketed. And, say the economists, companies with software patents tend to find that their research and development efforts decline. Bessen and Maskin say software patents have developed into "judicial holdups."

But the battle in Europe may already be lost. According to a preliminary vote by the European Office of Patents, there were 10 votes to 9 in favor of software patents. "It's a small club made up of representatives from national patent offices," says Ann Ostergaard, a member of the Linux community in Denmark.

Ostergaard is surprised there hasn't been more debate on the subject of patents. She has requested a delay of the OEB vote in order to allow other players from the EC, the Parliament, and national governments address this issue, which up until now has remained largely technocratic. Along with the anti-patent lobby, Ostergaard maintains that "you can't patent information." Ultimately, the vote will determine whether that's true.