Day One of New EU Patent War [LWN.net]

From:		Florian Mueller <fmueller.nosoftwarepatents-AT-googlemail.com>
To:		<lwn-AT-lwn.net>
Subject:		Day One of New EU Patent War
Date:		Thu, 13 Jul 2006 09:35:50 +0200

DAY ONE OF NEW EU PATENT WAR:
EU COMMISSION PUSHES FOR LITIGATION AGREEMENT

EU internal market commissioner McCreevy said at yesterday's hearing
on the future of European patent policy in Brussels that he wants to
"move forward" with the European Patent Litigation Agreement (EPLA) -
Anti-software patent campaigners vehemently oppose the EPLA,
claiming it is "from a software patents point of view [...] far worse"
than the directive they defeated in the European Parliament last year

Brussels (July 13, 2006) - At yesterday's European Commission hearing in
Brussels on the future of European patent policy
(http://ec.europa.eu/internal_market/indprop/patent/hearin...), the
EU's internal market commissioner Charlie McCreevy sided with lawyers and
big-industry lobbyists by supporting the European Patent Litigation
Agreement (EPLA). McCreevy described the EPLA as a "promising route" and
said: "I have asked my services to move forward with this project." McCreevy
also announced a "multi-faceted package" of patent policy proposals that he
will put forward before the end of the year and mentioned "patent trolls",
especially in the IT sector, as an issue he plans to tackle.

Anti-software patent campaigners spoke out strongly against the EPLA at the
first large-scale clash of the pro- and anti-software patent camps in more
than a year since the European Parliament rejected the software patent
directive.

The European Parliament plans to vote on a patent policy resolution in late
September. In the build-up to that vote, there will be an intense debate on
the EPLA and, in particular, on whether it would result in the legalization
of software patents in Europe and an explosion of litigation costs.

Florian Mueller, the founder of the award-winning NoSoftwarePatents campaign
that helped to defeat the EU software patent directive last year, was one of
the speakers at the hearing. He said in his speech that the EPLA "is just
another attempt to give software and business method patents a stronger
legal basis in Europe than they have now. [...] From a software patents
point of view, the EPLA would have far worse consequences than the rejected
patentability directive would have had: not only would software patents
become more enforceable in Europe but also would patent holders in general
be encouraged to litigate."

On Monday, Mueller had already predicted in his blog that McCreevy would
soon declare himself in support of the EPLA:
http://www.no-lobbyists-as-such.com/florian-mueller-blog/...

But Mueller was surprised that Nokia's Tim Frain voiced a skeptical position
on the EPLA, outlining six concerns including among others comparative
costs, the quality of judicial decisions, and a need to balance the
interests of right holders and alleged infringers. Frain said the EPLA in
its proposed form is "good for right holders" and pointed out that Nokia is
not only a plaintiff in patent suits but sometimes also a defendant. Nokia,
like the vast majority of patent holders, usually enforces a patent only in
one country at a time, and is worried about disruptive effect a Europe-wide
injunction could have on its business.

The audience at the hearing consisted of an estimated 200 lawyers, lobbyists
and government representatives. The Commission gave more than 50 people an
opportunity to speak out, and the vast majority of them backed the EPLA,
among them patent attorneys from EADS, Bosch, Qualcomm, Siemens, and
Thomson. But the opponents of software patents, including Austrian Green MEP
Eva Lichtenberger, complained in their speeches that their movement was
grossly underrepresented.

Several speakers at the hearing, including the Fraunhofer Institute (which
invented the MP3 format) and ProTon, an organization of university
researchers, complained about the lack of patent protection for software in
Europe under the current regime and were among those who strongly demanded
the ratification of the EPLA.

The legal status of software patents in Europe is contradictory. While the
existing written rules, which go back to the year 1973, disallow patents on
computer programs "as such", the European Patent Office (EPO) and various
national patent offices have granted tens of thousands of software patents.
However, European patents, even if granted by the EPO, can only be enforced
country by country as of now, and national courts declare many EPO software
patents invalid when their holders try to use them against alleged
infringers. Critics argue that the EPLA would create a new court system that
would be under the control of the same group of government officials who
already govern the EPO, and that the judges appointed by those people would
support the EPO's granting practice and its broad scope of patentable
subject-matter with respect to software and business methods.

Last week, the European Commission published a preliminary evaluation
(http://ec.europa.eu/internal_market/indprop/docs/patent/p...
s_en.pdf) of the responses it received to a patent policy questionnaire
published in January. The Commission's questionnaire addressed different
policy initiatives, first and foremost the unitary "Community patent", a
patent that would be valid across the entire EU. But the Commission's
preliminary findings indicate that disagreement over the language regime of
such a Community patent has thus far prevented the EU from moving forward
with the project. The Commission's analysis shows that industry
organizations show a strong preference for the EPLA instead.

Mueller also expects
(http://www.no-lobbyists-as-such.com/florian-mueller-blog/...) that
one of the next steps will be for the European Commission to ask the
European Court of Justice for an opinion on whether the ratification of the
EPLA requires direct involvement on the part of the EU or whether any EU
member states would be free to conclude the EPLA on their own. The EPLA's
proponents would prefer to eliminate the need to reach a decision at the EU
level, fearing that the European Parliament might once again wreck their
plans.

CONTACT INFORMATION

Florian Mueller
fmueller.nosoftwarepatents@gmail.com
phone +49-8151-21088

(Log in to post comments)

Day One of New EU Patent War

Posted Jul 20, 2006 7:44 UTC (Thu) by ekj (guest, #1524) [Link]

That has been increasingle obvious for some time now.

Consider the reaction to the defeat of the "EU constitution".

Initially, it was thougth it'd be easy, given that the *government* of all member-states supported the constitution.

But a few countries (for various reasons) had a referendum, allowing inhabitants to vote on the issue. Suprise; the actual people voted NO in Netherland and France, and *would* have in even more countries, only they stopped the referendums from even being held, to avoid embarassment since the constitution was defeated anyway. (it requires support from all member-states)

The embarassing truth is that, a little simplified, there's two sorts of states: Those where the people where not asked, and where the politicians voted YES on behalf of the people. And those where the people *where* asked, and the answer was a NO. (ok, so Spain actually had a "yes" referendum, it was never really controversial there)

Makes me glad that I voted "NO" in our last referendum (1994) when asked if Norway should join the EU. Seems to me it has pretty fundamental problems with its internal democracy.

Day One of New EU Patent War

Posted Jul 20, 2006 12:37 UTC (Thu) by nim-nim (subscriber, #34454) [Link]

A big reason for the "No" vote in France (and in fact the main reason I personnaly voted "No") is it was not a constitution at all.

Aside from some timid advancements in democracy it tried to sanctuarise every single previous european treaty (even economic not political ones) in a gray "voted by European Nations with the constitution" zone the European Parliament would never have been able to change.

You may agree or not with the direction current european economy takes, but it should be freaking obvious putting economic rules above democratic oversight is not good for democracy or the average little guy.

The main arguments of the yes proponents was "but those treaties are in force now, they'll be in force even in the 'constitution' is rejected, why are they bothering you?". Which always striked me as deeply cynical and contemptuous of voters brains.

(The counter argument being "they'll be initially in force even if they're not included in the treaty, why does it bother you so much the democratically elected European Parliament may want to revise them in the future?")

Of course that's an angle the reporters have carefully downplayed, as making the French vote a misinformed europhobic thing is so much more confortable than admitting a little despicable attempt to neuter the future Parliament where it counts backfired big time.

Unfortunately these days democracy is viewed as an hindrance in european power circles (which is inclusive of local European politicians, don't be fooled by people who pretend to be shocked by decisions they made themselves directly or indirectly in Brussels)

Day One of New EU Patent War

Posted Jul 21, 2006 13:06 UTC (Fri) by kleptog (subscriber, #1183) [Link]

My personal experience was that the most common reason people voted against it was because they could. No seriously. I had several people sitting across from me basically saying variations on: they never asked me before and now that they are I'm saying no. Did they actually read it? Nope, that wasn't relevent to their decision.

But you're right, it wasn't a constitution and it was a mistake to call it one. You have to remember that the EU is first and foremost an economic union. It's about making it easier to buy and sell things and do business. At the end of the day the EU has no police force or army which can force anyone to do anything. There are large parts of your daily life where the EU has no role and never will.

However, right now I just want France to give in so we can start scrapping all the farm subsidies. There's a sinkhole for money if there ever was one.

Day One of New EU Patent War

Posted Jul 21, 2006 13:50 UTC (Fri) by nim-nim (subscriber, #34454) [Link]

> My personal experience was that the most common reason people voted
> against it was because they could.

Of course they did.
Given they had little voice on european policies before, and felt they'd have little after, what did you expect?

The whole "vote yes" argument was basically:

"We wrote europeans treaties without your input before, now it's time to rubber-stamp them. We hear you'd like some democracy so we called the thing a constitution. But really, you're too irresponsible to have your destiny in your own hands, so we've produced a massive document no one but experts can evaluate. It will constrain the parliaments you'll elect later, so you needn't worry about them making mistakes. Trust us, and vote for democracy!"

Contrast it with:

"We hear you'd like more democracy so we've written a short document defining basic democratic values and leaving the task of defining actual (economic) policy to the experts you'll elect to the european parliament later. If you actually believe in democracy, vote to give a democratically elected assembly actual decision power."

Day One of New EU Patent War

Posted Jul 22, 2006 16:30 UTC (Sat) by kleptog (subscriber, #1183) [Link]

I'm saddened to hear you feel so badly about the way the EU was set up. It's the result of 50 years of work. At each stage every elected government at the time had a veto on the result. They were governments that citizens of the EU at the time had elected to represent them. If you really think every government for the last fifty years was seriously not looking out for their own citizen's interests, well, I'm sorry.

However, what you're suggesting as an alternative as totally impractical. The treaty exists to protect the member countries from the EU, much in the same way as a constitution exists to protect citizens from their government. As much as I think the EP is good idea, I'm not going to trust them above my own national government. For that reason, there should be clearly defined limits to the power of the EU and no EP or anything is going to fiddle with that.

Are there really any sections of the TCE you want the EP or the European Council to be able to fiddle with? I say nail 'em down so they can't move and if it takes 60,000 words to do so, so be it.

Day One of New EU Patent War

Posted Jul 22, 2006 17:57 UTC (Sat) by nim-nim (subscriber, #34454) [Link]

I respectfully disagree (and I think last vote showed most of France disagreed too). Democracy, not arcane indirect power contructs, is what protects citizens.

Power without accountability corrupts. What the Europeans mandarins built during the last 50 years is a system where governments can do back-room agreements, then push hypocritical horrified cries when the european directives they had written are transposed in national law a few years later (ie a no-accountability bureaucrat and lobbyist dream). And I won't dispute the fact most of them are honest or delude themselves in thinking this is all for the greater good.

I'm perfectly aware a European Parliament won't always vote in my country or my own interest. This is all part of the normal democratic process. I accept and do not fear it. My directly-elected representatives at least will know if they don't push for my interests I'll vote for someone else next time.

There are many parts of the TCE I disagree with but I'd have accepted them as long as there was a possibility to change them later through normal democratic process.

What I fear is institutions so complex politicians can reasonably expect normal citizens won't be able to trace their actions, so they needn't take voters into account.

Last year vote showed the French governement parties were so used to doing european policy behind voters back they couldn't defend it before them the one day they had to account for it. What's worse they spent months no realising this time they'd have to account for every single word of their proposal, and wouldn't be given « carte blanche » as usual.

I'm sorry if you can't understand the difference between democracy and enlightened dictatorship. Enlightened dictatorship always works better on paper - wise rulers protected from the whims of voters or direcly elected assemblies. However enlightened dictatorship posits enlightened rulers in the first place, and they tend to get rather scarse once you remove the accountability part.

(Not to mention most of the people who dared pose as enlightened elites last year had lost the voters trust a long time before)