After months of closed back room discussions, the Irish Presidency of the European Union has referred the proposed EU Directive on software patents back up to "political" level. The Irish want members of the Council of Ministers of the member states to agree to drop all objections by May. The Presidency proposed draft text rejects all clarifying amendments made by the European Parliament and instead pushes for direct patentability of computer programs, data structures and process descriptions. A last ditch attempt by the Luxembourg delegation to ensure interoperability with patented standards was rejected. In support of the Council's position, the Patent Department at Nokia is collecting signatures from top company executives for a "Call for Action" in favour of the Presidency text. In the other corner, supporters of the European Parliament's position have arranged conferences to explain the dangers of software patents, and are mobilising for a "net strike" and a rally in Brussels on April 14th under the slogan "No Software Patents -- Power to the Parliament". They are hoping for a repeat of the impact of similar actions in the run-up to September 2003, which helped convince the European Parliament to vote clearly against software patents.

• Software Patents return to the EU Political Centre Stage
• New Pro-Patent Lobbying Efforts from Nokia
• Reactions by MEPs to the Council Working Party position
• Presidency Text Rejects Interoperability
• Net Strike, Rallies, Conferences
• Annotated Links
• Media contacts
• About the FFII -- www.ffii.org
• Permanent URL of this Press Release

Software Patents return to the EU Political Centre Stage

Following months hidden away deep in the Brussels undergrowth, debate on the controversial European Directive on software patents is returning back to the political high level. On Tuesday 6 April, the Irish Presidency of the EU referred the issue to the CoRePer committee of Member States' Permanent Representatives, the traditional venue for difficult political horse trading.

In response, campaigners against software patents have announced a day of mass action in Brussels on Wednesday 14 April, culminating in a high-level conference in the European Parliament building itself. Additionally, they are urging their supporters to go on "net strike" next week, blacking out the front pages of their websites to highlight the possible consequences of software patents. (http://demo.ffii.org)

The move by the Irish Presidency on Tuesday to refer the dossier was not unexpected, but marks a significant return of the dossier to the political centre-stage.

According to one source familiar with the Presidency position, "there has been some clear progress in the Working Group on problems that some of the Member States had had with some particular questions of wording; but there are still significant differences between Member States on some of the most fundamental issues. The general feeling is that work at the technical level has gone as far as it can, and a strong input from the political level is now going to be needed, if general agreement is to be achieved by May".

The member states are supposed to sign off their common position at a meeting of the Competiveness Council of Ministers to be held in Brussels on May 17-18.

New Pro-Patent Lobbying Efforts from Nokia

Meanwhile, lobbyists in favour of software patents are also gearing up for the fight. FFII has obtained a copy of a round-robin letter being circulated by Nokia's Tim Frain (Nokia/Southwood) and Dany Ducoulombier (Nokia/Brussels) for pro-patent signatures before April 8th. The letter calls on ministers to drop their objections, and to support a draft text issued by the Irish Presidency on March 17th. (http://swpat.ffii.org/papers/europarl0309/nokia0404/)

"All of Europe's innovators, including individual inventors, small and medium size enterprises (SMEs), as well as large multinational companies, require patents to protect their inventions, provide incentives to undertake research and development in Europe, and to promote licensing and technology transfer", claims the letter.

"Nokia doesn't seem to be counting Opera among the European innovators", comments Håkon Wium Lie, CTO of Opera Software Inc, an innovation leader in the web browser market and producer of much of the software used in Nokia's mobile phones.

And, as Hartmut Pilch president of FFII and speaker of the Eurolinux Alliance explains, Opera is just one of "more than 5000 European CTOs and 2000 CEOs who have publicly endorsed our petitions against software patents".

Pilch continues:

"The Nokia patent department's claim that patents are needed to fund research in the software sector looks like a desperate attempt to mobilise the misconceptions of people who are not familiar with the ICT sector. All the economic studies we know of, including those ordered by the European Commission and by member state governments, have shown that software patents are only of very secondary importance as a means of securing investment in research and development. The main drivers of competitive advantage are copyright, in-house capability, unavoidable complexity, and the ability to react quickly to customer needs. In fact, according to the most detailed economic studies, patent investments in the United States have actually tended to reduce spending and divert it *away* from R&D investment in this sector. These points came out particularly clearly in the testimony given by directors of large companies to the US Federal Trade Commission at governmental hearings in the USA last year".

"The letter from Nokia is written from a perspective of a corporate patent lawyer concerned about a possible erosion of his department's importance within his company. Ministers should see it for what it is."

Reactions by MEPs to the Council Working Party position

The proposed Presidency draft text for the Directive, recommended in the Nokia letter, is singled out for particularly vehement attack by the software patent opponents.

According to Nokia, the proposed Presidency text is to be commended for "presenting a balanced text which preserves the incentives for European innovation in sectors as diverse as telecommunications, information technology, consumer electronics, household appliances, transportation and medical instruments while responding to the European Parliament's call for limitations to ensure that patentability does not extend into non-technical areas or unduly hinder interoperability in our increasingly networked society".

However, this claim of balance is flatly rejected by campaigners. According to James Heald, FFII's UK co-ordinator, the text is actually "the most extreme yet seen, put together only from the most pro-patent sections of all the previous texts. All of the important amendments passed by the European Parliament in September are completely ignored. The draft text is deliberately blind to all of the problems which the Parliament tried to address".

The view is shared by leading MEPs. Piia-Noora Kauppi MEP, Finnish MEP of the European People's Party (Conservatives/Christian Democrats), expresses dismay at the Council Working Party's contempt for parliamentary democracy:

"As the Council is trying to look for a compromise with the European Parliament on the proposal for patenting of computer-implemented innovations (software patents), it should base its work on the final decision taken by the plenary session of the Parliament, not on that of the Commission or of the Legal Affairs Committee. Judging from the papers produced so far by the Council's working party, it seems that the Council is not treating the will of Europe's elected legislators with the respect which it deserves".

Daniel Cohn-Bendit MEP, chairman of the Greens/EFA group puts it more bluntly:

"The Council working party has so far completely failed to address the problems which the European Parliament's Cultural and Industrial Affairs committees tried to solve. They behave in the same way as the Legal Affairs Committee behaved last year, and we can expect that they will fail in the same way.

"It is clear that the national patent officials in the Council do not want what they call 'harmonisation' or 'clarification'. They merely want to secure the interests of the patent establishment. If they don't get what they want, they simply bury the directive project and try to find other ways to get around the existing law, whose clarity is so painful to them".

Presidency Text Rejects Interoperability

FFII's most hollow laughter is directed at the claim that the Irish proposed text would not "unduly hinder interoperability".

Jonas Maebe, Belgian speaker of FFII, explains:

"The Industry committee, and the Legal Affairs committee, and the full session of the European Parliament, all demanded a special provision to allow data to be inter-converted between different packages and software platforms. Otherwise companies can use software patents to lock in users' data to a particular program or operating system, and competition would be impossible".

"It's a systematic problem. Each and every market niche is individually potentially at risk. That's why, in the final vote in September, the European Parliament voted in favour of the provision by 393 votes to 35".

"But according to Nokia, the Council Working Party has 'responded' to the European Parliament's call, so everything's all right. And how (despite a valiant last-ditch opposition by the Luxemburgers) does the Working Party propose to respond ? By deleting the European Parliament's clause entirely, and instead replacing it with a recital that says any problems can be left to existing antitrust law".

"Remember, this is the antitrust law which has just taken four years, at vast expense, to go after a /single/ accused company, Microsoft; which Microsoft says it can tie up in appeals for another four years; and which at the end of the day looks like the case will be settled with a cosy cross-licensing deal between Microsoft and Sun, and Samba definitely not invited to the party".

"One starts to wonder about what kind of idealised dreamworld these people live in."

Net Strike, Rallies, Conferences

The FFII is meanwhile mobilising its 50,000 supporters and 300,000 petition signatories to demonstrate both on the Internet and in Brussels on April 14th. The website http://demo.ffii.org states:

"In February 2002, the European Commission proposed a directive that would legalise software patents. However, the European Parliament decided in its Plenary Vote of 24th September 2003 to fix all the loopholes in this proposal and explicitly banned software patents.

"Currently, the European Council of Ministers is discussing this directive. Their internal working party proposes to simply discard all clarifying amendments from the Parliament. They want to make everything patentable.

"That is not an option Europe is willing to accept. We showed them this on 27 August 2003. We will show them again on 14 April 2004.

"Black out the front page of your website in protest"

The site provides numerous sample strike pages and banners which can be used by webmasters to support the action.

The rally begins at 11.30 at Luxemburg Square in Brussels. Participants will wear t-shirts with the slogans "No Software Patents -- Power to the Parliament". There will be speeches and performances. The marchers will thank the European Parliament and protest against the lack of accountability in the Commission, in the Council, and sectoral bodies such as UNICE and EICTA, which they accuse of misrepresenting the industry by leaving policy decisions to specialist patent lawyer committees, similar to the patent working party of the EU Council.

The rally will be followed by an interdisciplinary conference in the European Parliament, again room AG2, at 14.00. Among the participants of the intensely prepared discussion agenda are members of the European Parliament, officials from the European Commission, the Council Working Party and the European Patent Office, software developers, economists, and lawyers from all corners of the debate.

Full details can be found at:

• http://plone.ffii.org/events/2004/bxl04/

So far, more than 150 participants have registered with FFII for the event.

Media contacts

mail:

media at ffii org

phone:

Hartmut Pilch +49-89-18979927 (German/English/French)

Benjamin Henrion +32-498-292771 (French/English)

Jonas Maebe +32-485-36-96-45 (Dutch/English/French)

Dieter Van Uytvanck +32-499-16-70-10 (Dutch/English/French)

Erik Josefsson +46-707-696567 (Swedish/English)

James Heald +44 778910 7539 (English)

More Contacts to be supplied upon request

About the FFII -- www.ffii.org

The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich, which is dedicated to the spread of data processing literacy. FFII supports the development of public information goods based on copyright, free competition, open standards. More than 300 members, 700 companies and 50,000 supporters have entrusted the FFII to act as their voice in public policy questions in the area of exclusion rights (intellectual property) in data processing.

Permanent URL of this Press Release - http://swpat.ffii.org/news/04/cons0408/.