The future of the patents battle, and the july 12th hearing

The software patents battle will return this Winter. Nothing much is happening this week, so this isn't a call to arms. This entry is a quick review, a look at what's coming, and a late report from the European Commission's July 12th public hearing "Future Patent Policy in Europe"

Sections:

(Note: the section links don't work in Planet syndications)

1. Background: European patent governance
2. The previous battle
3. The coming battle
4. What will be our difficulties
5. What factors are on our side
6. My 3-minute intervention on July 12th

I've gone into some length, but this is still a summary. If you think I've over-simplified or left anything out, leave a comment or email me at ciaran at fsfe dot org.

Background: European patent governance

There are three powers in the patent system:

1. The law makers - write the rules defining what is patentable
2. The patent office - read the law and approve/reject patent applications
3. The national courts - decide whether a patent is valid or not when litigation occurs

This conforms to the traditional European form of governance: there is a separation of the administrative/executive (patent offices), the legislative (law makers), and the judicial (the courts). The theory is that by seperating these powers, a failure in one power can be spotted and fixed by one or two of the others.

The current status of software patents is that the law says that software is not patentable, the patent offices are approving software patent applications, and the national courts are mostly ruling that software patents are invalid.

Side note: The administrative/executive branch of the patent system suffers from bad design. The EPO answers to no one. They can, if they choose, grant patents for absolutely anything. They are instructed to follow the European Patent Convention (EPC), but there is no one with the power review the practice of the EPO and to fix the EPO if the public, or the law makers, or the judiciary believes that the EPC is not being adhered to. Fixing this design flaw might be the path we eventually have to take to secure a swpat-free EU.

The previous battle

The last battle was about legislation. The law makers were asked to change the law to make software patentable. We countered by asking the law makers to clarify the law to a point where the patent office could no longer justify the granting of software patents.

In July 2005, the proposal to change the legislation was dropped entirely. So neither side won. We didn't win, but we did something very significant. We showed that we are a capable player in the legislative arena. Those in favour of software patents evaluated our ability and decided that the risk that we might win was too high, so they walked away.

The coming battle

Now, those in favour of software patent have decided to try modifying the judiciary power. They don't like that the national courts are dismissing cases where software patent holders try to litigate against people.

They've found two ways to get at the judiciary power. One is the "Community Patent", and the other is the EPLA (European Patent Litigation Agreement).

There are proposals, backed by those in favour of software patents, for either of these to put the European Patent Office (EPO) in charge of the judiciary power. So instead of patent litigation cases being decided by the national courts, they would be decided by special patent courts with judges appointed by the EPO. ...and the EPO are the people who say that software is patentable. If this happens, software patents will exist in every measurable sense in the EU.

The argument for having this one court is that a single EU-wide court would be more cost effective and would create EU-wide precedent and prevent conflicting results between states. The argument for giving the EPO control over this court is that the court should be made of experts and the EPO are the experts.

What will be our difficulties

1. In the last battle, we proved ourselves to be particularly capable at working with the European Parliament (EP), but in the Community Patent, the EP have only an advisory role, and in the EPLA they have no influence. (Florian Mueller posted more details in response to this blog entry)
2. The procedure is different. In the last battle, we expended a lot of expert-time in figuring out timetables and what power each body has at each stage and which milestones have effects on the end result that are irreversible or hard to reverse.
3. The media spotlight isn't on this issue anymore.
4. Many of us, the anti-swpat campaigners, have turned our attention to other things.

What factors are on our side

1. There are other factors involved which could greatly delay this. The Community Patent project began in 1968! So it could go on for a long time. The other side of this is that there are people who would love to see this get finished, so if it ever looks finishable, there will be a lot of people pushing to rush it to the finish line.
2. Both the Community Patent and the EPLA are aimed at fixing a perceived problem that patent litigation is too expensive and bureaucratic. This is good for us because it will be hard for anyone to argue simultaneously both that the patent system is very cumbersome and that it should be expanded.
3. The idea of giving the administrative/executive branch control over the judicial branch contradicts the European idea of democracy (and probably most or all regions's ideas of democracy). If this inappropriateness can be pointed out to the public and the media, it shold be easily understandable.

My 3-minute intervention on July 12th

Preface

Below is exactly what I said for my intervention at the hearing. Given more time, I could have done better, but there were limits to what anything I said could achieve, so it wouldn't have been worthwhile to spend much more time on it anyway. My aims were to register the FSFE does not support either current proposal, that democraticly questionable processes were not going unnoticed, and to remind those present that free software must be considered. I was limited to 3 minutes and I had to speak slowly to ensure that the translators could keep up.

My intervention

Last July, the European Parliament rejected a proposal to codify EPO practice with regards to software patents.

One year later, here we are in a room full of businesses and patent lawyers, discussing a proposal to codify EPO practice.

Without any directly elected representatives, and without journalists and the public, it's certainly quieter, but it is not very democratic.

Business is part of the EU, but there are also people.

I'm not fundamentally against a community-wide patent. The problem is in the implementation.

Separation of executive and judiciary is a cornerstone of European democracy.

The EPO is out of control, but instead of being reined in, it is being given control of the judiciary.

Software can be made and distributed like cars, but it can also be made and distributed in many other models. For this reason, patents affect software differently.

Patents are incompatible with many models used by software SMEs, as has been mentioned by some today.

Patents are also incompatible with many models used by Free Software. This is not just about cost, so it doesn't matter if the costs are doubled or halved.

Free Software is software which can be examined, modified, and re-published. Users of Free Software are enabled and free to help themselves and each other.

Software is an area prone to monopolies. This morning, the European Commission felt the need to fine one company 280 million euro. Software is the only sector that has required such intervention by the European Commission.

Free Software such as the GNU/Linux operating system should not be stiffled because a litigation problem was solved carelessly.

-- 
Ciarán O'Riordan,
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