As I wrote yesterday, one of the most pressing problems the open source community faces in the near future is the Unitary Patent proposal, which is likely to bring in software patents to Europe. Here's the background, and what we can do about it.
Back in 2005, an attempt to legalise software patents in Europe was thrown out by the European Parliament. Even though the European Commission announced that it would not be submitting any more proposals of this kind, that does not mean that the matter was closed.
For a start, the European Patent Office (EPO) - which is not an EU body – has been merrily issuing software patents anyway. If you doubt that, take a look at this depressing page from the FFII that shows a Web design with no less than 20 elements covered by EPO-issued software patents:
All of the elements and processes indicated in the graphic above are covered by granted (not just requested) European Patents. These patents would have been rendered legally enforceable by the soft patent directive which the European Parliament managed to reject in 2005, as a result of the awareness raising from Eurolinux, the FFII and concerned software professionals from all over Europe. However, the still unresolved legal uncertainty has recently allowed some companies to enforce soft patents in Europe. New projects of European institutions are underway to create a centralized patent court that would decide case law favorable to soft patentability.
Here's how the EPO explains the Unitary Patent idea:
Currently, once a European patent is granted by the EPO, it has to be validated in each EPO member state for which the patent proprietor seeks patent protection. For this purpose, the majority of states require a full translation of the patent in their official language(s). The future unitary patent will be automatically valid throughout the territory of the EU member states participating in the enhanced co-operation scheme in the EPO language in which it was granted.
So the crucial difference is that EPO patents currently still have to be validated in each EU member state, and can still be challenged in local courts. Once the Unitary Patent comes in, EPO patents will automatically be valid in all countries that have joined the scheme (Italy and Spain haven't.) The question then becomes: so where can the EPO's patents be challenged? In an excellent article on the Unitary Patent, Richard Stallman provides us with the answer:
A small but crucial detail in the [Unitary Patent] plan is that appeals against the EPO's decisions would be decided based on the EPO's own rules. The EPO could thus tie European business and computer users in knots to its heart's content.
As we've seen, the EPO has already been granting software patents (tens of thousands of them according to Stallman) despite the European Parliament decision not to accept them; currently, those patents can be contested in national courts. But come the Unitary Patent, it won't be possible to do that; instead, the validity of the EPO patents will be decided according to the EPO's rules. It's easy to see that this will lead to a flood of software patents being validated across Europe, bringing with them the insane, destructive lawsuits that are currently tearing the US computer world to pieces. Needless to say, the knock-on effects for open source would be terrible if that happened.
For this reason, we need to ask our MEPs to put as many safeguards in place as possible to prevent the EPO being able to impose its own view on software patents against the will of the European Parliament. This is a hugely complex area, which I don't pretend to understand in depth, but fortunately the French free software association April has done all the hard work for me/us. Here's the introduction to the main page with information about what to do:
The European Parliament will vote on July 4th 2012 for a regulation on the unitary patent.
The current text, as agreed in December 2011 by the Commission, the Council and the Committee on Legal Affairs (JURI) of the European Parliament, amounts for the European Union (EU) to waive its powers to define a patent policy for the benefit of the European Patent Office (EPO), which is not an EU body and whose governance has been highly criticised, specially with regard to its practice of granting software patents, against the letter and the spirit of European patent law.
Moreover, the implementation of this shift of powers is based on a legal architecture which raises strong doubts about its compliance with the EU treaties. Therefore, the proposal, if voted without substantial changes is likely to be nullified by the Court of Justice of the European Union (CJEU).
We are proposing a set of amendments aiming to bring a legal certainty to the regulation and to fix the political issue of the governance of the European patent system.
The document is quite long, but clear. Essentially, April would like people to ask their MEPs to vote for a series of amendments (.pdf) to the Unitary Patent regulation. This means that all you really need to do it to put together a covering letter, attach the PDF, and then send them to your MEPs, whose names you can find here.
I'm conscious that this is short notice for such an important area, but I think it's worth sending off these amendments because MEPs are probably equally lacking in detailed information about the Unitary Patent's problems and possible solutions. I've attached my letter below.
As you know, in 2005 the European Parliament voted definitively against the introduction of software patents in Europe (http://news.bbc.co.uk/1/hi/technology/4655955.stm). This confirmed the European Patent Convention, which also excludes "programs for computers" from patentability (Article 52 - http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ar52.html).
Patents on software techniques are as damaging for computing as patents on words would be for literature, because they place a tax on indispensable elements. The consequences of allowing such a tax on innovation can be clearly seen in the US, which has allowed software patents for two decades.
In their book, "Patent Failure" (http://researchoninnovation.org/dopatentswork/), the legal scholars Bessen and Meurer estimate that for the US the aggregate annual patent profits and costs from 1996 to 1999 were respectively $100 million and $3.88 billion, which means that on average during this period software patents cost the US economy around $3.78 billion. The situation since then has deteriorated, notably in the field of smartphones, where dozens of companies are suing each other over alleged infringement of their software patents (see the diagrammatic representation here: http://www.flickr.com/photos/floorsixtyfour/5061246255/)
Thanks to the European Parliament's action in 2005, the EU has been spared the worst of these excesses. But the proposal for a Unitary or EU patent, which you are voting on next week, could have the effect of allowing software patents into Europe, and thus opening the floodgates of costly litigation at a time when European companies are already under extreme financial pressure because of the current economic crisis.
The Unitary Patent will be administered by the European Patent Office. Here's how the latter describes the change it will bring (http://www.epo.org/news-issues/issues/eu-patent.html):
"Currently, once a European patent is granted by the EPO, it has to be validated in each EPO member state for which the patent proprietor seeks patent protection. For this purpose, the majority of states require a full translation of the patent in their official language(s). The future unitary patent will be automatically valid throughout the territory of the EU member states participating in the enhanced co-operation scheme in the EPO language in which it was granted."
That is, currently the patents awarded by the EPO are not necessarily valid in individual European countries, and can be challenged in national courts. But once the Unitary Patent is brought in, it will automatically be valid throughout the participating nations.
This is a problem because the EPO has been issuing software patents in increasing numbers, using a concept called Computer-Implemented Inventions (CII), which allows it to circumvent the ban on software patents. Because these were not automatically recognised in EU countries, and could be challenged in national courts, the effects of these CII patents were limited.
But once the Unitary Patent comes into force, all such software patents will be valid, and can only be challenged in a central court following EPO rules. This will permit US software companies, which have deep pockets and decades of experience in this area, to file huge numbers of patents that are valid Europe wide, and enable them to hold European companies to ransom: either the latter must pay arbitrarily-high licensing fees to continue to use basic programming ideas that have been standard parts of their toolkits for years, or they will be sued for potentially huge damages.
To avoid this threat I urge you to adopt a series of amendments, attached to this email as a PDF (april's amendments to unitary patent.pdf). These have been drawn up by April, a French advocacy association promoting and protecting open source software. Software patents are particularly problematic for open source, whose free sharing is not compatible with per-copy licensing as usually required by software patents. To allow software patents in Europe would be to endanger the many companies there that have placed open source at the heart of their businesses.
Here is April's brief summary of the amendments that would address the main problem with the Unitary Patent: the fact that the EPO has been issuing software patents for many years.
"In order to bring back the governance of the European patent system in the hands of the EU, we have proposed an amendment (#4) to write down in EU law, provisions pertaining to substantive patent law, i.e. what can be patented or not, and under which requirements, and another one ( #5) to recall exclusions from patentability. More specifically, we have addressed the issue of the EPO currently granting patents on software ideas, against the letter and the spirit of European patent law, with an amendment ( #6) which clearly defines boundaries of patentability."
Another group of amendments deals with the fact that the EPO's decision would not be subject to national courts:
"We have proposed an amendment (#10) stating explicitly that a recourse against any administrative decision of the EPO is available before a national independent court. Also three other amendments (#9, #11, and #13) ensure that the European Parliament, as EU co-legislator, will be implied in defining patent policy, instead of leaving Member States alone delegating this task to the heads of their national patent office."
The Web page detailing April's arguments can be found at http://call.unitary-patent.eu/campaign/go/unitary-patent-table-plenary-ams?setlang=en; there is also a full review of the Unitary Patent and its problems by distinguished academics at https://www.unitary-patent.eu/content/academics-confirm-flaws-unitary-patent.
I hope that you will be able to support amendments and to protect the EU computer industry from software patents just as the European Parliament did in 2005.
Update: The amendments discussed above have been filed by the Greens/EFA group in the European Parliament as Amendments 52-67; this means we can now ask our MEPs to support those. In addition, April has put together a comprehensive set of recommendations on how MEPs should vote on all the proposed amendments, as well as some supplementary explanation of what the amendments do and why we need them.
I therefore have added the following paragraph to the letter I sent to my MEPs last night:
These amendments have now been filed by the Greens/EFA as Amendments 52-67, so I would urge you to support those in the plenary vote. April has put together a detailed commentary on all the proposed amendments which you may find useful: https://www.unitary-patent.eu/content/voting-recommendations-plenary-amendments.