First
we agree to limit the meeting to 1 hour and not to record the
session on tape.
Then Mr. Noteboom introduces the action of the European
Commission in order to harmonise and clarify the interpretation of
software patent law and tells us he is very happy to host this
meeting and that he hopes there will be more meetings. Mr. Noteboom
wants a single entry point to communicate with the Free Software
community.
Noteboom also points out that DG XV is not copying the US.
We come to introduce the
EuroLinux Alliance position on software patents.
The EuroLinux Alliance is an alliance of commercial companies and
open source associations concerned by the plans of the Commission to
create a harmonisation directive about software patents.
Our position is:
- We are not opposed to patents on innovative computing
processes with industrial application as long as they stimulate
innovation, stimulate technology transfer, increase competition,
improve consumer protection and improve the safety level of
information technology
- We are firmly opposed to patents on computer programmes
because this is a scientific nonsense (programmes are of the same
nature as mathematical proofs) and a danger to the society
(patents on programmes implementing social practices and business
methods allow to get a property title on social practices and
business methods)
- We are concerned about legal strife. We think software
publishers, distributors, should not come under the risk of being
sued if they act in good faith. We think that open source
development and the publication of source code should be protected
and treated like scientific research.
Noteboom explains that
Mr. Mueller will go to the US next week. Mr. Mueller explains that
the US position to grant patents on business methods and
mathematical formulas raises concerns also in the US.
I represent SuSE. Our company
is employing 200 people. We are the world's biggest Linux
distributor. Linux is a major operating system whose core part was
developed in Finland. It is the most widespread operating system
among web sites. Linux has 25 million users world wide. The SuSE
distribution is leading in quality and sales. SuSE sold about a
million CDs last year. Linux experienced a tremendous growth, 178%
per year according to IDC.
This is what we sell (Pilch shows a SuSE box). This package
contains more than 1300 packages of different origins. About half of
them from Europe. Many are commercial packages made by companies
with quite a lot of people who rely on us for their distribution
world wide.
Such commercial packages include:
- StarOffice, from Hamburg, one of the most serious contenders
to Microsoft Office
- Blender, an advanced 3D and animation package from the biggest
3D studio in the Netherlands
- VShop, an ecommerce solution from Frankfurt, used by big
websites such as Deutsche Bahn, Michael Schumacher
- Mpeg, an MPEG decoder made by Frenchmen
- Netbeans, a Java development environment from Czechia
- Sniff (Austria), Qt (Norway), Roxen (Sweden), Flagship
(Germany), XOffice (France), Siag Office (Sweden)
Millions of people can install these packages worldwide. Thanks
to us, there is no need for the publishers to set up their own
distribution channel. We think we are like Airbus for a large
section of the European Information Technology industry. We provide
access to the world market and to the US market to small European
companies.
Now, here is a letter from our
CEO, Mr. Dyroff, explaining this in detail. (Mr. Pilch gives a
letter.)
Our question is: is this (Pilch raises the SuSE box) illegal?
Will this box infringe the new European patent law? As far as we
see, it will. The SuSE distribution contains 1300 programmes, each
of which with 1000 algorithms which may infringe with a tremendous
amount of existing software patents (soon 100.000 in the US). Some
big customers routinely ask us to guarantee that our system doesn't
infringe on any third party rights. But to really guarantee that
this box is not a patent infringement, we'd have to check more than
1,000,000 algorithms against 100,000 patents. Of course, this can
not be done. On the other hand, if we don't do it, we lose customers
and may be sued for infringement and have to pay for the lost sales
of another company.
Therefore, we would have to shut down our business or sell it to
companies such as IBM. In either case, many very creative jobs would
be lost.
We think that with the current law, software based inventions are
already patentable in Europe. They can already force us to remove
packages and this already has adverse effects on our business and on
the openness of competition between different operating systems.
That is very bad. But it is not as bad as having to close down.
That's why we support the EuroLinux Alliance proposition.
Noteboom asks: How many
times SuSE has been sued in the US?
Pilch replies: "Never".
Smets adds: "there is a story of a guy falling to the ground from
the Eiffel tower. Someone asks him "is everything fine?" The guy
answers "everything fine, so far"."
I work in the legal
department of Infomatec AG.
Infomatec is a technical pioneering company. Infomatec develops
technology for for embedded systems. We are 500 employees.
Our strategic advantage is being one step ahead of our
competitors. We could have easily patented our technological
advantages but we want to focus on being one step ahead and
improving our advantage rather than investing to secure what we
already have.
What we already have is sufficiently protected by copyright. By
the time we would get the patent, the technology would no longer be
decisive in the market, so we think there is no need for patents.
Moreover, we want to open the source of our products when the
underlying technology is already common.
The proposed patent regulation poses a threat because it does not
improve our legal security. On the one hand, we are not interested
in suing others for patent infringement. On the other hand, we could
not make our source code public any longer because others could
easily discover patented matter in our products. This is because the
mass of software code is so huge that it is impossible to be certain
there are no patented algorithms inside.
The proposed patent regulation would then force use to withhold
our knowledge instead of opening it when it is not cutting edge
anymore.
Here's a letter from our
CEO which states our position in detail.
I am Paolo Didone. I
represent Prosa, an Italian
company of 15 people who produce, sell and support open source
software. I am one of the founders of Prosa. Our consumers include
several universities, the the Vatican and many companies, especially
in the telecommunications sector.
Open source software develops through a community effort by
individuals and companies. It is only possible if everyone can
publish and share knowledge.
We believe that this open source development process is important
for the information society, and we are in line with a recent
statement from Mr Liikanen. The open source process is very similar
to academic and scientific research. It requires a public space
where people can publish information and contribute freely, without
having to fear to be infringing patent rights. If computer programs
are made patentable, this can kill the open source development
process. People will not be able to keep on open source development,
and companies like Prosa may be forced to shut down.
Patents on programmes are dangerous for research, innovation and
competition in Europe.
I am the legal
specialist of the Linux-Verband (LiVe), an
association of vendors and users of Linux in the german speaking
area. The purpose of our association is to promote professional and
commercial use of Linux and to uphold and maintain the free
availability of the Linux system.
LiVe is very concerned about recent changes in the realm of
patent law.
- First of all we are concerned of de facto changes through a
creeping metamorphosis of the European patent system.
- Secondly, we are concerned about the proposed changes of the
law system itself. These changes are not justified by any solid
reasoning. As far as I know, no study of impact has been made to
justify these changes. This lack of impact study has, by the way,
been confirmed by the president of the French patent office at a
recent international conference.
It seems to me that currently European legislators are
disoriented and in situation of just copying American laws. The
effects of patent law are just not even being taken into
consideration:
- First: the legal insecurity of software patents will be even
bigger than in the area of trademark law. This will lead to law
courts being swamped with pointless litigations.
- Secondly, free software and open source will be especially
vulnerable to attacks. SMEs which can not afford a patent
department will be put at disadvantage. Additionally, since
European enterprises are less experienced with software patenting
than US companies, they as a whole will be put at a disadvantage.
Therefore I beg you to promote and conduct an open discusion of
this subject on the Internet. I have been looking for this
discussion but did not find anything. Therefore it is an important
goal of LiVe to bring about this discussion in the coming months.
I am Frank Hoen from
Netpresenter, a small
dutch software publishing company which invented push technology in
1995. We are a Windows company, which means we use Windows and our
software is proprietary.
We have offices in the Netherlands, Germany and US. Our product
is used to popularise internal corporate communication. We have 250
000 users including : Nokia, Shell, Philips, the Star Wars people
and the Dutch prime minister.
In 1995, we tried to patent our software in the US but failed.
Why? Because we could not pay. Even if we had patented we could not
afford defend our patent. Meanwhile, other companies in the US have
acquired patents in our field, and we can no longer sell our push
technology software in the US, although we were the inventors of
that technology. The same could happen in Europe. We could be
squeezed out by multinational companies because they are the ones
who have the more money in case of a lawsuit, not because they make
better software.
Having no patents saves us time, money and allow us to compete
better.
Our position is based on
detailed studies, especially these here (Smets hands over a pile of
printed articles, including his Software
Useright study)
Our studies show a lot of potential inconsistencies in software
patent law.
They are in line with these statements from Hal Varian (Prof. of
microeconomics at Berkeley), Dr. Ingo Kober (President of the
European Patent Office), 10 european industry leaders, Oracle,
Adobe, Borland, etc
EuroLinux proposes a consensus position:
- OK for patents on innovative computing processes with
industrial application as long as they satisfy the constraints of
article 7 and 8 of the TRIPS treaty and article 100 of the Rome
treaty
- A No-No position for patents on computer programmes
This position makes software related infringement based on
contributory infringement rather than on direct infringement.
Software publishers and service companies can only be sued if they
are notified first. This saves everyone from legal harassment by
only allowing to attack people who act in bad faith.
Moreover, an automatic patent license collection system can be
set up based on this approach (read the article SU without any
changes in the law.
This position has many advantages:
- it makes is easier for inventors and proprietors to collect
patent license fees
- software publishers risk nothing as long as they accept
automatic patent license fee collection
- legal costs for patent management can be lowered which makes
European software industry more competitive than in the US where
legal costs for patent management are tremendously high
- it creates two independent markets, one for copyright
licenses, the other for patents licenses, which makes the software
market much more competitive than if patent licenses and copyright
licenses were always bundled.
- It makes less work for DG XV who will not need to convince the
EPO to change article 52.2
It is therefore a win-win position.
Noteboom takes note of
our position. He says that the European Law should be well designed
enough for at least the next 20 years and that there are important
economic issues raised in our position which should be studied by
the Commission.
Mr. Mueller
suggests that European standards on inventive step are higher than
those in the US. We explain various reasons why these standards
present no real obstacle to obtaining a patent, either in the US or
in Europe, and we say that we are currently filing a test patent at
the EPO to prove this.
Mr. Noteboom also tells us that he thinks the
paragraph 52.2 of the Munich convention will be changed and the
exception of programmes will be removed, although this does not
depend on DG XV or EC decisions.
Mr.
Ravillard says that he has drafted the new directive on European
utility certificates without listing computer programs on the list
of exceptions, but that this draft is by no means final and that it
is possible that computer programs may be put back on the list.
Mr.
Noteboom states that a lot of people, in the industry and in the
general public, have complained that in Europe software inventions
are not treated on equal terms with hardware inventions, and that
the US have a more "liberal" patent law which eliminates such
"inequalities".
We explain that computer programs are not like hardware
inventions but much more like books. If programmes are patented, a
book with a programme printed on it will be an infringement. Mr.
Noteboom does not think so because he believes a book with a
programme printed on it is not of the same nature as a CD or a
floppy with a programme stored on it. We explain that a book can be
automatically scanned through an OCR and that the programme printed
on it can be compiled and run. We also explain that even musical
compositions and textbooks can be and are often constructed as
computer programs and that composing these works has technical
aspects, just like composing software, so that, if computer programs
are to be patentable, for equality reasons, works of music and
literature will also have to be patentable.
Mr. Noteboom and Mr. Müller find this view surprising and
difficult to accept. Unfortunately we have no time to further
explore this issue.
We ask whether DG XV would be willing to organise
a conference of all the interested parties so as to further clarify
remaining issues. Mr. Noteboom says that DG XV would send a speaker
to a conference if EuroLinux organised one, but would not itself
organise any more conferences.
We
suggest that the European Union should make a patent law that is
more advanced than its US counterpart, and that the IT industry's
well known "first mover takes all" principle also applies to IT
lawmaking: The European software makers will be at a disadvantage,
if the EU imitates the US, and at an advantage if the US imitates
the EU. Mr. Noteboom replies that it is very unlikely that the EU
can do anything that will be imitated by the US, because in general
the EU lags a few years behind the US. |