Editorial

Welcome to this second newsletter. This month the Commission claimed that software was not patentable, but I guess they had their fingers crossed behind their backs, thinking, "unless, of course, it runs on a computer".

The fight against software patents is not over. The pro-patent lobby is as determined as ever, and has as much money and political influence as ever. They are just being careful to avoid an open fight.

While the patent system is crumbling in the USA (over a million patents waiting to be examined!), in the EU we are still moving slowly towards a de-facto recognition of software patents.

This is how it works: the European Patent Office, which is not under the control of any parliament, hands out software patents like fresh bread on a Sunday morning. Friendly judges here and there uphold these patents and the EPO appeal courts (also outside any democratic control) modify patent law slowly to strengthen these patents. Software patent-holders then claim that the EU is failing to create an open market because they cannot use their software patents everywhere. Poland, for example, just refuses to accept software patents. Surely this goes against the Lisbon Agenda!

So the FFII is hammering away at the pro-patent agenda. We are asking questions in national parliaments. We are fighting the propaganda that "software patents mean innovation". We are like the stone in the shoe of the pro-patent lobby. We're the small child pointing to the emperor, and saying, "hey, the ugly old dude's naked!"

And it's not just software patents. We fight for the right to innovate in the IT world. Innovation and prosperity demand three things: open standards, proportional ownership, and open competition. Software patents, like DRM, and monopolistic practices, corrupt standards, they subvert ownership, and they distort competition, and history will show them to be a fraud.

-- Pieter Hintjens, President of FFII

FFII board meeting in Warsaw, Poland

Here are the main points that were developed in the last FFII board meeting in Warsaw:

• Publishing an activist guide to get the FFII message better through to activists.
• Preparing activists guidelines for local persons on mass mailing and providing lists of contact people per country/region.
• Providing for each country a Contact Howto.
• Making a six-month calendar will be prepared to clearly planify FFII initiatives.

For more information, get the complete FFII board meeting reports by submitting to bxl@ffii.org

European Day Against Software Patent on 6 July?

It has been recently proposed to launch the "European Day Against Software Patent" on 6 July. As you remeber the European Parliament massively rejected Commission's proposal on "Computer-Implemented Inventions" the 6th of July 2005, thanks to FFII lobbying campaign called "Economic Majority Against Software Patents".

It is clear that FFII lobbying victory is to be associated with software parliamentary democracy. In this view, FFII will try to get some conference room in the European Parliament to celebrate this major event. Moreover, it would be the occasion to keep informed European stakeholders on software patents by making presentations on the European Patent Litigation Agreement (EPLA) and starting the fundraising. A special website should be created and a specific logo. We are still waiting for propositions and of course you are all welcome!

Read Florian Mueller's book about software patents

Starnberg, Germany, June 06 2006. Florian Mueller, the founder of the award-winning NoSoftwarePatents.com campaign, has published his memoir-style book, "No Lobbyists As Such - The War over Software Patents in the European Union", on the Internet. On 377 pages, Mueller tells the story of the legislative process that ended in July last year with a landslide vote of the European Parliament against a proposal for a software patent directive.

The file may be redistributed under a Creative Commons license. Mueller explained in his blog that he wants "to get [this] book out to a large audience, especially since the next major war over software patents in Europe will officially break out on July 12 at a hearing to be held by the European Commission in Brussels. The same forces who supported the software patent directive we successfully fought against are now trying to achieve everything they wanted the last time, and even more, by means of the European Patent Litigation Agreement (EPLA)."

The book is now available on the Internet for download on http://www.no-lobbyists-as-such.com/NoLobbyistsAsSuch.pdf

European Commission: EPO Case Law Not Binding - Software Not Patentable

Brussels, 24 May 2006. In a reply to a question from Polish MEP and inventor Adam Gierek, the European Commission has confirmed that the European Patent Office's (EPO) case law is not binding for member states, nor (under the proposed Community Patent regulation) for the European Court of Justice (ECJ). For the first time, the Commission has also clearly stated that computer programs are not patentable subject matter, without hiding behind the infamous "as such" cop-out.

FFII President Pieter Hintjens said: "I'm stunned. The Commission has been denying reality for so long and pretending that the earth was flat and apples did not fall downwards, whereas the EPO has been obnoxiously granting unwarranted pieces of paper whose only innovative effect has been in the domain of patent litigation. Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"

Then he added: "It is nevertheless good to see that the Commission no longer presents EPO case law as 'the status quo which must be codified'. However, it relies too heavily on courts to keep Europe safe from software patents. Whether or not Europe should have software patents is not a legalistic detail which should be left to courts to sort out. It is a crucial economic policy decision which must be taken by our elected representatives."

For more information, see the question asked by Adam Gierek MEP (13 April 2006) on http://wiki.ffii.org/Gierek060413En and the answer by the Commission (18 May 2006) on http://wiki.ffii.org/Gierek060518En

Polish MEP Adam Gierek asks Commission about mixture of EPLA and EPO judges

Brussels, 23 May 2006. Polish MEP Adam Gierek asked Commission about the mixture of the European Patent Litigation Agreement (EPLA) and European Patent Office (EPO) judges, EPO judges who have interpreted the European Patent Convention in an extreme way in order to introduce software patents. The problem especially concerns the independence and neutrality of the future patent judiciary system. If EPO judges were simply transferred to the European Patent Court (EPCt), software patents would be undoubtedly reintroduced The EPCt would definitively lack of "ideological independency".

For more information, see Adam Gierek's question to Commission on http://wiki.ffii.org/Gierek060523En

Zoe Genot's question to Belgium Minister of Economy Marc Verwilghen

Brussels, 16 May 2006. Belgian deputy Zoe Genot questioned Belgium Minister of Economy Marc Verwilghen on the European Patent Litigation Agreement (EPLA) the 16th May 2006, requesting precisions on its implementation in Europe. Will EPO judges be able to be appointed for the European Patent Court (EPCt)? Will the nominations of the EPCt judges be democratically controlled through parliamentary approbation? What are the modalities of the ratification of EPLA? Will the European Commission be in charge? Etc.

Marc Verwilghen was as embarrassed as his answers appeared confused... As to the Belgium Minister of Economy, the independency of the EPCt judges would be guaranteed by the article 5 because of the possibility from civil parts to challenge the EPCt judges. But it appears to be an expansive measure that takes to much time. In any case, as to Marc Verwilghen, we will be given more information next 12 July 2006.

For more information, see Zoe Genot's question and Verwilghen's answer: http://wiki.ffii.org/GenotVerwilghen060517Fr

SMEday organized by Microsoft in Brussels

Brussels, 6 June 6 2006. It is clear that the European ICT sector is composed in great majority of SMEs recognised as the growth engine of the European economy: there are around 22 million SMEs in Europe, employing close to 120 million people and contributing 57 per cent to Europe's GDP. That's why Microsoft generously offered to bring together European business innovators, venture capitalists, entrepreneurs and governments to provide a "360-degree view of how SMEs can drive innovation and growth in Europe". Of course, it might appear paradoxical that giant Microsoft organized such an event dedicated to SMEs and innovation, especially knowing that last year the same Microsoft was "actively" supporting the CII directive threatening EU software SMEs. You say astroturf? Quite probable. And we were not surprised to hear through the conferences such proposals as importing Ireland capitalistic model all over Europe, creating more partnership between majors and SMEs and of course improving "today's disastrous IP system in EU".

For more information, see http://www.smeday.eu

ACT Patent Press Release: http://www.actonline.org/press-releases/060605SMEInnovationDay.html

NESSI general assembly

Brussels, 8 June 2006. The first General Assembly of NESSI was held to present the Working Groups progress as well as NESSI contribution to the 7th Framework Programme. Promoted by thirteen major European ICT corporations, among which you find IBM, SAP and... ObjectWeb, the NESSI technology platform aims to provide a unified view for European research in services architectures and software infrastructures that will define technologies, strategies and deployment policies fostering new, open, industrial solutions and societal applications that enhance the safety, security and well-being of citizens. The presence of ObjectWeb as a board member aims at representing the Open source communities through a communication channel called "ONESSI". We were particularly attentive to the ONESSI initiative and asked what would be the NESSI IP policy knowing that SAP, IBM and ObjectWeb do not share the same vision of how to protect software innovation. A "very good question" that reached no clear answer.

For more information, see http://www.nessi-europe.com/

Public hearing next 12 July

In January 2006, the European Commission started a public consultation "on the future of the Community Patent in Europe" on the pretext of promoting of developing software free market and protecting innovation. In reality, the aim is to legalize software patents by transferring EU and member state legislative and judicial power to the European Patent Office. Patent system does not guarantee continued innovation. A software patent system in Europe could only be counterproductive and disastrous for economic development.

FFII first questioned the validity of the procedure, based on the serious lack of accessibility, which means that a majority of EU businesses were completely excluded from answering. That's why FFII recommended participation to those businesses that are able to do so, for "Open democracy" means more transparency and effective hearings of all stakeholders... Following a formal complaint by FFII to the EU Commission's President Barroso, and meetings between FFII and the Commission, the Commission agreed to extend its deadline from 31 March 2006 to 12 April 2006. FFII submitted its answer to the consultation organized by the European Commission last Wednesday 12th of April.

The next step after the public consultation is the public hearing taking place the 12th July. The Commission will first present a document outlining the preliminary findings of the consultation based on replies received until 12 April 2006. Then, the Internal Market DG will directly consult stakeholders on their needs in relation to the legal framework and possible actions in the field of industrial property. Of course, we will attend to this public consultation and Pieter Hintjens will speak in the name of FFII in order to defend the general interest of European software companies.

For more information, see the FFII consultation website on http://consultation.ffii.org and the internal market website on http://ec.europa.eu/internal_market/indprop/patent/consultation_en.htm

The Blackberry case and others

Blackberry is a product of Research In Motion (RIM), the innovative leading marketer of wireless solutions. Since 2001, RIM has been sued for infringing five software patents held by NTP. In 2006, RIM had to pay $612.5 million to settle a patent lawsuit with NTP. Presently, RIM is being sued by Visto. The Blackberry case illustrates that software patent are dangerous to innovative and competitive businesses. The Blackberry case is not an isolated one. Recently Apple and Creative Labs have been engaging in a software patent war, undoubtedly an expansive and non-profiting one. If software patent were legalized in EU, as it is in the U.S with the US Patent and Trademark Office, they would not serve innovation and free competition, in fact and they would certainly used by powerful companies to sue innovative and high-profiting SMEs (patent troll strategy).

For more information, see http://wiki.ffii.org/BlackberryEn

European Inventor of the Year nominee speaks against software patents

Brussels, 3-4 May 2006. The first edition of the "European Inventor of the Year" was held at the Hotel Le Plaza in with the gala dinner and awards ceremony taking place at the Autoworld Museum on 3 May. Organised by both the European Commission and the European Patent Office, the aim of this event is to promote software patents in Europe. FFII couldn't miss this "exceptional" manifestation.

One of the nominees in the non-European countries category was Charles E. Perkins, who worked at the IBM T. J. Watson Research Centre in Hawthorn, New York, when they developed mobile IP, enabling mobile devices, such as laptop computers, to be moved between different networks.

Briefly, it appears that Charles E. Perkins tends to consider that software in itself should not be patented though at the same time he reckons the necessity of protecting the expensive process of developing software.

Get the interview on http://wiki.ffii.org/Perkins030506En

Calendar

• Bonn, 25-26 June: FrOScon (Free and Open Source Software Conference). For more information, see http://www.froscon.de/wiki/FrOSCon

• Paris, 26 June: Paris Capitale du Libre. The aim of this "free" event is to bring together Open source stakeholders from all over the world. For more information, see http://www.paris-libre.org/

• London, 30 June: European Patent Litigation Agreement (EPLA) Conference. For more information, see http://wiki.ffii.org/EplaIbc060630En

• Brussels, 12 July: Public hearing on the Future of Patent Policy in Europe

For more information see http://new.ffii.org/Calendar

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion@ffii.org
(French/English)

Donations

If you want to support FFII activities, please consider to donate: http://www.ffii.org/Donations