FFII reaction to software patents/Red Hat controversy

(Enlarged board of the FFII in CC) Dear editors,

After reading some reactions at http://lwn.net/Articles/189693/ and seeing the way the FFII is being implicated in the ensuing discussion, we would like to make the statement you can find below.

Best regards,

Jonas Maebe Board member of the FFII

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We, the board and membership of the FFII, who fought alongside many firms (including Red Hat) against software patents last year, and who are continuing the fight against software patents today, would like to state that:

1. During the second reading of the software patents directive last year, 21 compromise amendments (21CA) were tabled by MEPs following Rocard (Socialists), Buzek/Roithová (Christian Democrats) and Duff (Liberals), and also by the Greens, GUE/NGL and IND/DEM as groups. These amendments went straight against the Commission and Council's attempt to turn current EPO practice into law. The FFII fully supported these amendments.

2. Until the last minute, the FFII's strategy was to support both those amendments and rejection: we recommended both on the voting lists [PDF] we distributed to MEPs. Other people on our side chose to support only one of these options for either strategic or political reasons. The FFII considered both options a very good outcome, and would like to thank everyone who helped no matter which option they promoted.

3. The pro software patent lobby decided, on the eve of the vote, to start pushing for rejection rather than risk any of the 21CA being approved. This was in part thanks to the dual strategy of lobbying for both the amendments and for rejection: they were afraid that the 21CA would be approved, so they chose their second best option which happened to be fine for us as well (and MEPs knew that both were fine for us).

4. The lobbying by ourselves and others in favour of the 21CA by definition implied a position "to keep the software patent directive alive". This does not mean that these people, us included, were in favour of software patents.

5. In the end, only the MEPs had the decision taking power. The MEPs on our side were strong thanks to the widespread support which our platform enjoyed (SMEs, academics, IT professionals, the open source community, ...). Whether companies, organisations and individuals decided to formulate their support for our platform by promoting the 21CA, rejection or both was up to them as far as the FFII is concerned.

6. The final decision was dictated by on the one hand the balance of power within the political groups, and on the other the hand the unhappiness all MEPs shared about the Commission refusing their two restart requests. Rejection was therefore the ultimate compromise, and at the same time a strong signal towards the EPO stating "we are not turning your current practice into European law".

7. In conclusion: in July 2005 the FFII position was supported by Red Hat and Mark Webbink, and we have no reason to believe we no longer have their support today on the topic of software patents.

This side issue is regrettable and badly timed, considering that the EU Commission is planning to launch the next round of their pro software patents campaign next week in Brussels, promoting the European Patent Litigation Agreement (EPLA). The EPLA is an attempt to undo the work achieved last year in Parliament, and to institute software patents through the back door, by enforcing EPO case law across all Europe.

In a nutshell, the EPLA would remove all current national patent courts, put one European-wide patent court in its place and have the people currently running the EPO appoint its judges every six years. We therefore call upon all parties to work with the FFII to continue the fight against software patents in Europe and abroad and to support us this year, as they did last year, against the lobbyists of the patent establishment.

In the long term, the way forward is clear: build on the 21CA, and the related 10 core clarifications, to reinstate a proper basis for patent law and to avoid its extension into economic areas where it does not work. At the same time, the EPO must be opened up so it is no longer exclusively controlled by the patent establishment, as otherwise we keep trying to save a tree while letting the forest burn.

Signed,

The Board and Membership of the FFII