Saturday, September 09, 2006

EPLA = software patents

The software patent war is heating up again.

In some ways it's very much like last time, in 2005:

  • The EU Commission and EPO are collaborating to push for new patent legislation.

  • Big Software is promoting the Commission's proposals.

  • New proposals and resolutions are coming to the European Parliament.

  • And apparently, it's got nothing to do with software.

What's going on? Well, the European Patent Office (EPO) and its friends in the Commission, Big Software, and the patent business, have a new strategy for introducing US-style patent laws into Europe. The trick is simple. Today, while the EPO happily and profitably grants lots of software and business process patents, national courts repeatedly strike these down.

Judicial independence has been a major stumbling-block to a larger and more profitable patent market. National judges stubbornly insist on sticking to their national laws, which mostly forbid patents on software and business processes. These troublesome national courts don't seem to realise that the world has changed and that more patents are the key to future prosperity. Especially if you're a patent lawyer or expert. And software and business processes - as the US has shown - are by far the best growth area. One can literally invent an infinite number of patents from mundane IT. Take any idea or process, add "on a computer" to it, and you have a new invention!

So the plan is to bring all these troublesome national courts under the umbrella of the EPO, which in its wisdom has long ago stopped trying to limit its customers' natural right to patent everything under the sun.

The Commission ran a "Community Patent" consultation earlier this year, and when it did not get the general support it wanted, it simply cheated. Behind the scenes - after the consultation closed - it rang up individual firms known to be patent holders, and helped them answer the consultation. It then organised a parade of talking heads all known to want software patents, and told the world, "Lo! Everyone wants the EPO's vision of patents!" Only a few token opponents spoke out.

And the Commission's master plan is called EPLA, or European Patent Litigation Agreement.

The goal is to expand the EPO's power so that national courts no longer have the right to strike down illegal patents. Think about this for a minute. EPO board-of-appeal case law - defined by EPO judges who sit 100% outside any national or EU control - will override national law. Judges sitting in an institution that is totally outside democratic control will define how we do business.

It would be troublesome even if these judges were known to be fair and wise. But the EPO is not a neutral party. It has strong economic interests in exploding the patent market, whatever the cost to smaller firms. Not only is the EPO untrustworthy, it is corrupt. The same individuals work in the EPO, advise large firms on patent strategy, act as lobbyists at EU institutions, and start their own patent-holding firms. It is a revolving door where individuals write laws and then profit directly from them.

We stand before a clear choice: expand the EPO's powers to control the whole European patent system, or reform the EPO and bring it under better control. I've nothing against the patent system in principle. Patents are monopolies that can, in the right circumstances, promote investment in innovation. But when patent law is used by a priviledge few as a money-making machine, and these same priviledged few then lobby for more and wider patents, to the detriment of existing intellectual property rights... when patents start to steal from copyright and make ordinary business impossible... when patents become a threat to innovation and our economic prosperity... then I get very angry. I've spent 25 years of my life writing software, protected by copyright. I don't need burocrats telling me that I need more IP protection.

If the EPLA moves forward, software patents will become common currency in Europe. This is visibly a major goal, seen by the enthusiasm shown by large software firms like SAP for the new proposals. I don't see much support for the EPLA outside the IT sector and all the support comes from the same large firms that pushed for the cleverly-named "Computer Implemented Inventions Directive" last year.

If the EPO's judges get control over patent law, patents on software algorithms and techniques will explode, and we will see a freeze of grassroots innovation in Europe. Further reform of our banking, insurance, and travel industries will stop as it becomes impossible to introduce new IT standards without risk of patent infringement. European integration is largely enabled by technology, and software patents place the entire European project at risk. I sometimes wonder if the Commission, in all their breathless enthusiasm for "stronger IP", realises quite what they are leading towards.

The USA shows what a mess an activist and corrupt burocracy can make of things when it captures control of the patent system. It is literally impossible to run an IT business in the USA without legal weaponry. This is the future of European business if the EPLA moves ahead.

Life for Europe's small and medium IT firms is already pretty hard. We pay a lot of taxes. We compete with firms in countries that have much cheaper labour. American investors love risk but European ones hate it. We have to deal with dozens of languages and other natural barriers. We have no Silicon Valley, no economies of scale, no ability to deal with a US-style patent system and the waves of litigation it will bring.

Small-to-medium IT firms have repeatedly and firmly told the Commission that they do not want software patents. The Commission pretends to listen but ignores us. Who cares what a hundred thousands small firms say or need when the message from ten huge firms is so clear?

So it's time to get active.

It's time to write to your MEP and tell him or her, "We don't want the EPLA".

It's time to fight for a reform of the EPO because this organisation is not doing its job.

It's time to join other activists and do what we did last year - change the world.


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