On the software patents conference article at IDG

[<xdrudis@tinet.org>]

I haven't been able to find the email address of the journalist
who wrote this article. If somebody knows it and can forward this 
to him, in case it's of any use to him...



I thought you may be interested in some precisions on an 
article posted in idg:

Open source lobby struggles in EU patent debate
By Paul Meller IDG News Service, Brussels Bureau
09-05-2003

http://www.idg.com.sg/idgwww.nsf/unidlookup/7D507696B25B253848256D210021B08B?OpenDocument


> 
> Open source lobby struggles in EU patent debate

It was SMEs and academics. There was a leader of the Free Software
movement, but not so many representatives of the Open Source Movement [1]. 
There were certainly developers and managers of propietary software . 
 
A better title would have been "rapporteur sentences on her directive
from her office while citizens, developers, managers, academics and
politicians debate downstairs", or for brevety "rapporteur sentences
on her software patents directive while SMEs debate downstairs"

> By Paul Meller
> IDG News Service, Brussels Bureau
> 09-05-2003
> 
> BRUSSELS - Supporters of open source and free software saw an
> extravagant lobbying exercise against a planned European Union law on
> software patents backfire on them on Thursday.

One may consider it extravagant, but maybe to judge its success one
should ask the organisers for their goals?.

> More than three hundred software developers and entrepreneurs opposed to
> granting patents on software programs attended a one-day conference at
> the European Parliament in Brussels Thursday, hosted by their main ally
> in the Parliament, the Green Party.
> 

There was a conference in Dorint hotel on wednesday and thursday
afternoon, and a conference in the European Parliament on Thursday
morning.  So you can either call it a half day conference (if you mean
the EP event), a one and half day conference (if you mean events at
Dorint), or a two days conference (if you mean both), but I wonder why
a journalist should call it a one day conference. Also the "Green Party"
does possibly not name anything. the organisers were the political
group of the Greens/European Free Alliance [2]

> Their aim is to warn lawmakers of the dangers they see in passing a
> Europe-wide law on software patents. Patent protection, they argued,
> stifles innovation in software development among small companies and
> programmers by creating a legal minefield only the richest of
> corporations can navigate successfully.
> 

Quite right, although at least one of the speakers (Richard
M. Stallman) explained the problems with using the term "protection"

> The conference comes one month before the proposed directive on software
> patents is to be debated formally for the first time in the European
> Parliament. But the event, which included an elaborate lunch for
> delegates with cabaret entertainment on a roadside terrace in the heart
> of the European Parliament district in Brussels, may have caused more
> harm than good, said some Parliament officials.
> 

Not for the first time. It has already been debated formally in the EP
a number of times.  There was a hearing in Nov 7th [3], a conference on
nov 26th [4], debates and votes by parliamentary committees CULT [5] and
ITRE
[5] in january and february respectively

> "They were preaching to the converted. They should have been speaking to
> MEPs (members of the European Parliament) that favor software patents,"
> said one, who pointed out that the most important member of the European
> Parliament at this stage in the debate did not attend.
> 

If the most important MEP means the rapporteur, a look at the JURI
committee web forum[7] will evidence the fact that she did not answer to
any attempt at debate from at least summer 2002, long before this
important MEP finished her draft report. Once she has done her report
and her amendments, her vote is as important as that of any other
MEP. It is not that they did not speak to that important MEP, but that
they never got an answer.  It is not very polite to keep insisting on
the same points to someone who does not have to listen and is not
answering.

> Arlene McCarthy, a member of the legal affairs committee responsible for
> choosing the amendments to the proposed law to be tabled at next month's
> plenary session, said she wasn't invited to the event.
> 

Note that a rapporteur function is not choosing the amendments. It is
proposing what to do with the proposed law. This may include proposing
amendments, that will be adopted or discarded by the Plenary, together
by those proposed by others. If it was meant that it was the committee
who was responsible, this is more correct, but still not the full
story.

> Joint organizers of the conference from the European Free Alliance, a
> free software lobbying group, said they did invite McCarthy but admit
> that the invitation wasn't sent until the beginning of this week.
> 

It is difficult to know exactly what does this mean.  The conferences
at Dorint were organised by the FFII [8], which is part of the Eurolinux
Alliance [9]. Neither defines itself as a free software lobbying group, 
since they defend interests of free software users and developers as well
as those of companies selling propietary software.

The conferences at European Parliament were organised by a political 
group in the European Parliament called Greens/European Free Alliance. This 
is a coalition of political parties that may be more or less friendly 
to free software, but surely do not define themselves primarily
as free software related. I wonder under what dictionary a political
group in a parliament could be called a "lobbying group".

> A spokesman for the Alliance said McCarthy was also invited to submit a
> statement which would have been read out to delegates, but she declined
> the offer.
> 

This should be checked with the spokesman, but it is difficult since
his name is not given and it's not even clear if it was a European
Free Alliance spokesman or an Eurolinux Alliance spokesman. Maybe 
he meant McCarthy declined to attend the conference.

> McCarthy's office said it did submit a statement but that it was never 
> circulated at the conference. "It's not smart to snub the rapporteur on 
> the lead committee responsible for guiding this debate. They won't have 
> done themselves any favors by appearing to (disrespect) McCarthy," said 
> one Parliament official who requested anonymity.  
>

McCarthy document and other material related to this has been
circulated to mailing lists and the web[15], as a confirmation with the
accused party would have confirmed in case the journalist would have
wanted to offer neutrality to their readers. The document was not
circulated at the conference, but it was received by email in an
incompatible propietary format shortly before the conference (as soon
as McCarthy could send it, not her fault, but yet with not too much
time to print copies of it). McCarthy assistant, who attented the
conferences at Dorint the day before could also have circulated any
documentation.
 
> Speaking from her office while the conference lunch was in full swing in 
> the street below, McCarthy accused the conference organizers of not 
> wanting to hold an open debate.  
> 

The open debate that has existed for some time has not enjoyed the 
participation of McCarthy, which did not have to walk much to participate
in it. 

> She also said she will discard extreme amendments submitted by Green 
> MEPs. "I won't accept amendments that exclude patentability per se," she 
> said.  
>

I hope this means she will vote the same amendments that have also been 
presented by MEPs from her group. But it might be more news if we knew
about what the rest of MEPs in JURI will vote. The paragraph seems to 
imply only the rapporteur votes amendments.

> McCarthy, along with many MEPs from a wide range of political parties,
> believes a Europe-wide law on software patenting is required in order to 
> harmonize law across the 15 member states of the Union.  
>

That's possibly why MEPs from a wide range of political parties are
proposing amendments to clearly define what is patentable and that
software is not, instead of asking for rejection of the directive.

> She also believes that European software developers will be at a 
> competitive disadvantage to their American counterparts without patent
> protection.  
> 

This argument was presented by a member of the public in the EP
conference that left before another member of the public (Xavi Drudis
Ferran) could answer it and an speaker (Richard M. Stallman) could
clarify it. The answer was that since patents are only valid for the
territory where they are granted, in case Europe stays clear of
software patents and the USA keeps granting them, European software
developers and companies will have a safe home where they'll be able
to grow and work without being attacked with software patents, and at
their option they'll be able to file for USA software patents and use
them against their competitors there. European companies will only be
vulnerable to attacks with software patents if they have businesses in
the USA. On the other hand USA companies will be vulnerable at home.
This would be a competitive advantage for the EU, although both markets
would use the same rules for all players, either national or foreign.

Presenting only one of the opinions given that day in the EP is 
a bit unbalanced. 

> However, she agrees with opponents of the draft law that it would be 
> wrong to have the level of protection granted to developers in the U.S., 
> where mundane software devices can be registered for patent protection.  
> 

This is conviently balanced later by other people's opinion.

> "I want to make it harder to get patents in Europe than at present," 
> McCarthy said, adding that the Green party would be "mad" to vote 
> against the amended version of the draft she favors.  
> 

Where is the reply by the Green party?.

> But the message from the conference floor was clear. "We don't want 
> patent protection, thank you very much," said Robert Dewar, president of 
> Ada Core Technologies Inc., a small company based in New York with a 
> division called ACT based in Paris, which sells programs and support 
> mainly to defense companies such as Honeywell International Inc.  
> 
> "The way to win is to keep innovating, not relying on software patents," 
> he said. Dewar has acted as an expert witness for defendants in numerous 
> patent infringement lawsuits. "As a small firm, you go unnoticed by the 
> big software makers until you create something really special.  
> 
> "Then you start to receive letters from patent lawyers representing big 
> firms that either want to buy a license to your software at a cheap 
> price, or they simply want to drive you out of business so they can pick 
> up your idea for next to nothing in the bankruptcy court after you have 
> been sunk by astronomical legal fees," Dewar said.  
> 
> "A patent suit is the one thing that could sink us," he added.  
> 
> "If Europe adopts this software patent law I'm going to have to redirect 
> millions of dollars I planned to invest in European software firms into 
> a fund to cover patent infringement suits," said Laura Creighton, 
> co-founder of Swedish groupware developer AB Strakt and of a British 
> publishing software company called Reportlab Inc.  
> 
> Creighton became a millionaire during the Internet bubble and sold the
> bulk of her shares when prices were close to their peak in early 2000.  
> She said she made her fortune mainly from E-Bay stock at a time when she 
> herself was a software engineer. She now describes herself as a 
> small-scale venture capitalist.  
> 
> "I am the sort of person the European Union is looking for to help 
> develop the European software market. Lawmakers should realize that this 
> proposed law is putting me off," she said.  
> 
> Creighton, Dewar and free software guru Richard Stallman, who also took 
> part in the conference, all argue that the European lawmakers who aim to 
> create a law that is more restrictive than the regime in the U.S. are 
> misguided.  
> 
> If the directive is passed, "there will be the same surge in patent 
> applications in Europe that occurred in the U.S. in the late 1980s," 
> Creighton said, pointing out that there are 30,000 patent applications 
> already waiting to be legalized in Europe, including one for the 
> ubiquitous progress bar used to show how a software download is
progressing.
>

I doubt they said so.  There are 30000 software patents[10]
granted  by the European Patent Office, not applications waiting.
They are not much used in courts, possibly because the law 
says programs for computers are not patentable.
The directive would legalise those already granted patents, 
not unblock any application.

> "They may want something short of what the U.S. permits in terms of 
> patentabilty, but the reality is that European patent law will drift 
> down the same path," Creighton said.  
> 
> Although she largely agrees with him, Creighton doesn't share Stallman's 
> evangelical approach to the debate.  
> 
> "We do need laws to make sure software developers get paid for their 
> work, but patent law is the wrong way to do it because patent law only
> benefits the big developers," she said.  
> 
> McCarthy said the legal affairs committee will meet on Monday to try to 
> narrow the wide range of amendments being proposed by MEPs from both 
> sides of the debate. Another meeting may be necessary on May 20, ahead 
> of a planned committee-level vote on May 21 and the Parliament-wide vote 
> in early June, she said.  
>

18 June is early June ? [11]
 
> The proposal for a law was drafted by the European Commission, the 
> executive body of the Union, early last year. It would allow patents 
> only for software applications of atechnical nature, and it would not 
> permit patents on business methods.  
>

McCarthy draft report[12] says it would not permit patents 
on "non-technical" business methods,it implies 
it would allow business methods patents when 
a computer is used. Of course it would be more 
informative for the public  to note  that there
is doubt on what technical nature means, since
it is not defined in the proposal[13].
 
> The U.S. and Japan allow patents on a much wider range of software, and 
> they both permit patents for business methods. Business methods include 
> innovations such as one-click purchasing, for which the online retailer 
> Amazon.com Inc. received a patent in the U.S. in 1999.  
> 

This is maybe what McCarthy said, but if so should be attributed to
her. If it is the journalist conclusion, it should be more justified.
The questions and answers document issued by the Commission with the
proposed directive[14] was unable to precisely define whether the
1-click patent would be acceptable under their own proposal. Their
maximum precision is "highly unlikely".

Moreover, many patents on computerised business methods similar to
that of Amazon (e.g. EP762304 Network Sales System[15]) have been
granted by the EPO, and critics argue that McCarthy's proposal offers
no basis for refusing such patents and indeed makes their granting
only more likely.

> Amazon used the patent to get an injunction against use of a similar 
> purchasing feature by a rival, Barnesandnoble.com, but an appeals court 
> lifted that injunction last year.  
> 


References.

[1] On differences between the Open Source and Free Software movements
http://www.gnu.org/philosophy/free-software-for-freedom.html
http://www.fsfeurope.org/documents/whyfs.en.html
http://www.opensource.org/advocacy/case_for_hackers.php#marketing

[2]  Greens/European Free Alliance 
http://www.greens.efa.org

[3] On the Nov the 7th, 2002 hearing.
http://patents.caliu.info/audiencia.en.html

[4] On the Nov the 26th, 2002 Conference
http://www.greens-efa.org/en/issues/?id=14

[5] Committee on Culture, Youth, Education, the Media and Sport (CULT)
Homepage (from there the agendas for their meetings in software 
patents might still be available, possible meeting dates would be
2002.12.9, 2003.1.20)
http://www.europarl.eu.int/committees/cult_home.htm

Opinion of CULT on the software patents directive
http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019en.pdf

[6] Committee on Industry, External Trade, Research and Energy (ITRE)
Homepage (from there the agendas for their meetings in software
patents might still be available, possible meeting dates would be
2003.1.22, 2003.2.19 )
http://www.europarl.eu.int/committees/itre_home.htm

Opinion of ITRE on the software patents directive
http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455en.pdf

[7] JURI committee web forum
http://www1.europarl.eu.int/forum/mi/dispatch.cgi/opendisc/docProfile/100015/d20020620151148/No/t100015.htm

[8] FFII, Förderverein für eine Freie Informationelle Infrastrukture eV
http://www.ffii.org
http://swpat.ffii.org

[9] Eurolinux Alliance
http://www.eurolinux.org
http://petition.eurolinux.org

[10] Examples of software patents
http://swpat.ffii.org/pikta/mupli/index.ca.html

[11] You can confirm exact dates with the European Parliament, 
but this is what I infer from 
the Legislative Observatory database in the European Parliament web site.
http://wwwdb.europarl.eu.int/oeil/oeil_ViewDNL.ProcedureView?lang=2&procid=5974

[12] McCarthy draft report
http://www.europarl.eu.int/meetdocs/committees/juri/20030219/488980en.pdf

Comments on her draft report 
http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0302/

[13] EU Commission proposal for a directive on software patents
http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf

[14] EU Commision's questions and answers document published with the 
directive
http://www.europa.eu.int/comm/internal_market/en/indprop/02-32.htm

[15] Some business methods patents granted by the EPO

EP762304 Network Sales System
http://swpat.ffii.org/pikta/mupli/ep762304/index.en.html

EP792493 Dynamic pricing
http://swpat.ffii.org/pikta/mupli/ep792493/index.en.html

EP762304 E-business broking
http://swpat.ffii.org/pikta/mupli/ep762304/index.en.html

EP803105 e-commerce with a bank payment gateway
http://swpat.ffii.org/pikta/txt/ep/0803/105

[16] McCarthy document circulated in the web

        http://swpat.ffii.org/events/2003/europarl/05/contrib/amccarthy/

A pointer to it was sent to at least the following mailing lists (after
the conference)
news@ffii.org
patents@aful.org
bxl@ffii.org


-- 
Xavi Drudis Ferran
xdrudis@tinet.org