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Dangers from software patents in Europe

This is a presentation I made at an open source conference in Greece, 13 March 2010, at TEI of Piraeus.

Getting involved with software patents seems boring, and, unfortunately, it is, at least for me. I'm a computer professional and I like writing code. I'm a Python/Django fan, and I'm involved in a couple of free software projects. One of them is a state project (and it's free because I took the opportunity to move it towards the right direction when I saw that the right people were in the right positions). I don't like politics and legal issues much. However, I do occasionally mess around with copyrights and patents; not because I like it, but because I like being free, and it is a price I pay to defend my freedom.

1. Software patents in general

A patent is a monopoly on an invention. Let's assume that I invent something new; a totally noiseless vacuum cleaner, for example. I can then apply to the patent office (in Greece this is the Industrial Property Organisation), and under certain circumstances they will grant me the patent, which means that, for a period of 20 years, no-one will have the right to build my invention without my permission. Supposedly this helps progress, because supposedly my economic benefit from the monopoly is my motivation to make the investments necessary to innovate and invent. That is, if I had no patent, then as soon as I would put my vacuum cleaner to the market, my competitors would copy it and they would also produce similar vacuum cleaners. As a result, the profit I would have from my investment and effort would be very small or negative. Knowing beforehand that this would happen, in the end I would not have invested at all and I would not have invented the vacuum cleaner.

This, however, is only the theory. Practice is different. In the 1980s Sun Microsystems was a small company, and one day IBM accused it of patent infringement. Fourteen lawyers came to present the issue, of which thirteen were for decoration and the fourteenth presented seven IBM patents, claiming that Sun infringes them. When he finished his presentation, Sun's lawyers analyzed the patents one by one, and explained that six of the patents were clearly invalid, whereas the seventh might be valid, but Sun did not infringe it. The lawyer who recounts that was young, knew theory but not reality, and thought that with their legal analysis they had won the argument. The IBM chief lawyer, however, responded: "OK. Maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to our headquarters and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" Sun negotiated the amount, but paid.

This is, therefore, the sad reason for which we need to do the boring job of messing around with patents. If we prefer to stick to more interesting things, such as writing code, and not care at all about patents, then we will be forced to care the day someone knocks at our door, and then it will be much worse.

I won't go into more detail why software patents are totally insane and harmful, and why they discourage innovation instead of encouraging it, because Richard Stallman has explained it so perfectly that I would be doing you a disservice if I said more. So please go and read his speech; until you do, you'll need to take my word that software patents are totally insane and harmful.

2. Software patents in Europe

I'm in Greece, I create a new invention, and I patent it at the Greek Industrial Property Organisation. What happens in other countries? Could someone from Italy copy my invention? The answer is they can, because the Greek patent is only valid in Greece. In order to solve this problem, many European countries signed the European Patent Convention (EPC) in 1973. Under the EPC, the European Patent Office (EPO) was born. If you are granted a patent by the EPO, then it is practically valid in all countries that have signed the EPC.

Note that the EPC is not a European Union treaty, but a treaty of the 36 countries that have signed it. The EPO is not an EU institution, but an international institution of the 36 countries that have signed the EPC.

Article 52 paragraph 2 of the EPC mentions several things that are not patentable. These include mathematical methods, business methods, and computer programs. However, during the founding conference of the EPC in 1973, some delegations did not want these exclusions and spread unfounded fears that these limitations would exclude from patentability all physical inventions which incorporated a computer program. For example, if a washing machine washes the clothes better and the innovation is in the controlling software, then, claimed these delegations, paragraph 2 would mean that the new washing machine would not be patentable. Negotiations resulted in the addition of paragraph 3, which would make certain that paragraph 2 could not be misapplied. Only mathematical methods as such are excluded; only business methods as such; only computer programs as such, and not any inventions that contain them.

The years that followed saw the emergence of an astonishing bulk of trite speculation on when a computer program is not as such.

In 2 June 2005 I was in the European Parliament, where Theodora Karamanli of EPO, after making a presentation, was asked by Erik Josefsson of FFII: "Mrs Karamanli, if I have a method, and a program that implements the method, is my program a computer program as such?"

"Your program is a program that implements the method. Therefore..."

"It is not as such," interrupted Erik. Amidst laughter by the audience, Mrs Karamanli continued:

"No! It is a program implementing the method!"

Mrs Karamanli was only expressing the official policy of the EPO, which dates from 1998, when the EPO decided on a new interpretation of "as such". They ruled that a computer program is not as such "if, when it is run on a computer, it produces a further technical effect which goes beyond the "normal" physical interactions between program (software) and computer (hardware)." What does this mean? What does it mean that a recipe, when being executed by a cook, produces an effect which goes beyond the normal interactions between the recipe and the cook? It does not mean anything at all, other than any program can be considered to be not as such, provided you phrase the patent application appropriately. After 1998, the EPO started to grant software patents.

There was, however, a problem. If IBM comes and tells me "you infringe that software patent of mine", I'll tell them "sue me". If they do sue me, the court will not take into account the EPO decisions like the one above, because EPO decisions have to do with EPO policy and have no legal power. The court judges using the EPC only, and no sane court will possibly make such a far-fetched interpretation of the EPC as the EPO has done. This means that all software patents granted by the EPO are illegal, they cannot stand in court, and everyone knows this. We know, the EPO knows, and large software companies also know. Therefore, what they did was that they attempted to change the EPC in 2000, but they failed due to unexpected public resistance.

Changing a treaty signed by 36 countries can be difficult; however, passing a European Union directive can be easy if you know the right people in the Commission. So in 2003 they tried to pass a directive on software patents. They also changed the name, and instead of saying "software" they said "computer-implemented inventions". The European Union cannot change the EPC, because EPC is not EU law, but in the directive proposal there were provisions which imposed the EPO's far-fetched interpretation of the EPC. The attempt to pass the directive is a large story of endless scandal. The European Parliament finally rejected the directive because of an unprecedented movement of volunteers, people like me and you, who participated by writing blogs, organising happenings throughout Europe, sending letters to Members of the European Parliament, travelling to Brussels to talk to them, collecting signatures from small and medium enterprises, watching, translating, encouraging, and anything each one could do or imagine.

Since EPO failed to change the law, they then attempted to change the court. They tried to pass a decision to found the European Patent Court, which would practically be a branch of the EPO. The court would obviously decide using EPO's interpretation and not an independent interpretation, as another court would do. This attempt, which was called the European Patent Litigation Agreement, initially failed, and then they changed its name to Unified Patent Litigation System, which they are still hard at work to establish.

Meanwhile another attempt is also under way, the Trilateral Agreement, as it is known. The three parties are the Japanese patent office, the US patent office, and the EPO. These are the three big patent offices of the planet. They want to make an international treaty so that the patents granted here will also be valid there. But what will happen to software patents, which are mostly allowed in the US, but disallowed in Europe? After all the above, you can probably guess what they are attempting to do during their secret negotiations. [Update 2010-10-04: This paragraph is inaccurate. There is, indeed, a long standing "Trilateral co-operation" between the three offices, whose purpose is "harmonisation and development of industrial property administration and protection of industrial property rights", and there has been discussion on a "Trilateral Harmonization Project" (last speech of the conference, by Harold Smith); however, there is no international treaty known as "Trilateral Agreement" being discussed right now. I seem to have confused it with ACTA. Thanks to Cristina Castelli for spotting this error.]

This is something often done by governments: when they can't get their parliament to agree to a decision, they sign an international treaty, and then they tell the parliament "we are obliged to pass this law because we are bound by the international treaty". In the European Union it's worse. If, for example, the Greek government tries to sign a bad international treaty, something will leak, and some noise will eventually be made. But who watches the doings of the European Commission?

This brings us to the most important issue of all.

3. The new dictatorship

In 1979, Greece was accepted as a member state of the European Economic Community, as the EU was then named. I was in primary school at that time, and I remember my teacher explaining to us how important this was. I also remember a feeling of national pride, as these advanced countries, which in my childhood mind were like the Enterprise of Star Trek, thought that we were good enough to be partners.

Later, in 1992, I believed in the dream of the united Europe. The Maastricht Treaty allowed people and goods to travel freely across the European Union, and imported goods in Greece became much cheaper. Cars were now affordable, as were Adidas T-shirts. Ten years later, I was using one of the most powerful currencies in the world. I'm sad to say I still had not understood that I had been tricked.

All that has eventually lead us to our tragic current situation. I will not do you the disservice of explaining how the European Union has destroyed Greek productivity, because Ha-Joon Chang has done it so well. Please read his book.

What is worse, however, is that Greece is no longer a democracy, and this is true of all countries of the European Union. We are governed by Brussels. If you live in the EU, you go to vote, but you only vote for a local government, which has very limited power. 90% of your laws come from Brussels. You have a vague idea that you are voting for the European Parliament every four years, but you most likely vote for the European Parliament based on what you expect from your local government. You don't know how the European Parliament works, or the limited extent of its power. You have an idea of what the constitution of your country says, but you don't know what the European Union treaties say. You may be demonstrating or somehow protesting on bad things your local government is doing, but you do not question what the European Commission is doing. You can't recall the names of the Commissioners. And your newspapers, likewise, curse the corruption of your local government, and they rarely, if ever, look at Brussels, where the real government works, mostly unseen by you. The European Union is a new police state, which is governed by an authority that you do not elect, you do not question, and you do not hold responsible.

It gets even worse. We are also at the mercy of an even more sinister dark power: that of the economic and banking system. Maladministration may have accelerated Greece's economic collapse, but the main reason was the banking system; and since the banking system is similar in all countries, the rest are to follow us soon. In this economic system, which is based on the absurd premise that perpetual economic development is possible with finite resources, and where money is debt (please watch this), global economic collapse is inevitable, and the only question is when.

4. Is there hope?

If I thought that there was no hope, I would not have bothered to write all this. Yes, there is hope, and the hope is largely on the Internet. The Internet has given birth to free software; it has made the fight against software patent directive successful; it has made the Creative Commons possible; it has guaranteed free speech. The Internet brings many free people together and lets them work on a common cause. We must fight to keep the Internet free. This means that we must fight for free software, against software patents, against DRM, against TC.

When I say "fight" I don't mean to take the streets. Occasionally it's good to do that as well, but we must get used to a new way of fighting. Write blogs. Write free software. Be clever and take the opportunity, when you find yourself in the right position and under the right circumstances, to push free software to some part of your university, or of the public sector, or of a private company. Go to free software conferences. Become a member of an organisation like the FFII and go to international meetings; this will greatly expand your horizons. Whatever you do, do it well. No quick-and-dirty software, and no quick-and-dirty blogging. Take great pains to write quality texts. Be professional and listen to your customers.

The fight for freedom today takes places in offices and not in the streets. In this fight, the other side has the money. But the truth is on our side; and the truth is a very powerful weapon. It is not enough, however; we need to know how to use it.

© 2010 Antonis Christofides

Permission is granted to reproduce this document under the terms of the Creative Commons Attribution-Share Alike 3.0 Greece license.