Row erupts over software patent directive

Critics say the European Commission is being less than truthful about the effect of a new directive broadening European patent law, and point to evidence of irregular access by business interests

The European Commission's directive on software patents has come under severe criticism for bowing to the needs of big business at the expense of small software developers and consumers.

At the centre of the controversy is the revelation that the "author" of a draft copy of the directive appears to be a key employee of the Business Software Alliance, a group that represents the interests of big businesses, including Microsoft.

The directive is seen as a crucial test of the European Commission's determination to resist pressure from US government and business interests to relax the laws governing software patents. Advocates of such relaxation say it is necessary to allow European companies to compete on a level playing field with American companies.

Current EU regulations are supposed to stop patents being granted for software that has no technical merit. Such software patents are widely granted in the US for software that, critics argue, is little more than a business process. Such patents, they say, mainly serve the interests of patent lawyers and make it difficult to create new software without being exposed to lawsuits by big corporate patent holders.

Many issues have been discovered in the EC's draft directive, but the most worrying is the involvement of the BSA, according to the EuroLinux Alliance, an open coalition of commercial companies and non-profit associations that has been a vigorous campaigner on the issue.

The draft -- a Microsoft Word document -- circulated by EuroLinux, contains in the author's field the name of the BSA European director of public policy, Francisco Mingorance. This is proof, says EuroLinux, of the BSA's involvement in drafting the directive.

In an interview with ZDNet UK, Mingorance said he did not know how his name came to be associated with the document. "I don't know how or why my name was put on -- we have nothing to do with it, other than presenting our proposals," he said. "For the Commission it is insulting to say someone else is writing the proposal."

In fact, said Mingorance, if the BSA had had a hand in drafting the document, it would have changed a key aspect of the directive, which states that patents only apply to computers running software, not to the software itself. "This means that if someone is infringing your patent you cannot directly sue him; only when an end user is running it on a machine can you build a case to show that the person who wrote or sold the software is a contributory infringer. This will be more expensive for patent-holders."

"I look at this document," said Mingorance, "and it is not what we were proposing. We would rather see what is currently the European practice generalised to member states."

But the problem for the BSA is that many observers are now convinced that Mignorance -- or another BSA representative in Brussels -- had access to the document as early as 6 February. Speaking to ZDNet France, Jean-Paul Smets of EuroLinux said: "With this date, the draft directive should never have left the Commission. I do not think that BSA wrote the proposal, but nevertheless it is clear that the BSA had access to the document in a completely irregular way. EuroLinux has many contacts in Brussels, and they always refused to communicate the project to us before it was made public."

John Todd, a spokesperson for the Internal Market Commissioner's office, which is responsible for the directive on software patents, said he was not aware of the accusations against the BSA.

A spokesman for the UK Patent Office dismissed the idea that the draft could have been written by the BSA as a "conspiracy theory".

"I will not say big business did not have a input into the legislation," he said, "but so did everybody else."

The Patent Office spokesman maintained that the message from a consultative exercise carried out in preparation for the draft directive was "to maintain the status quo. We will not go down the American route" of allowing patents for software that does not have a technical effect.

"Software will still have to undergo exactly same test as any other patent application; novelty, obviousness and technical effect. If you take a handwritten ledger and write a piece of software to electronically produce it, that has no technical effect. But if you have software that makes a robotic arm more accurate or quicker, then there is a technical effect. (The directive) should be in tune with that."

He stressed that the commission has not yet approved the directive.

But regardless of the BSA's involvement, critics say many questions about the proposed software patents policy remain unanswered. High among these, said EuroLinux, are key differences between the draft document and the final one.

"The document of the (final) directive is incomplete," said EuroLinux in a statement. "All the arguments which allow (one) to decide whether this directive is legal or not according to the Treaty of Rome have disappeared. The press release also contains many sentences which are contradictory with the content of the directive."

EuroLinux said that contrary to official explanations, the directive does indeed propose to legalise the granting of computer programs as such in Europe.

"The proposed regulation is embedded in a long advocacy text which tries to give a rationale for this proposal," it said. "This text disregards the opinions of most if not all respected software developers and economists, instead (relying) on dogmatic statements about patents in general as well as some unsubstantiated claims and even some outright lies, citing as its only source of information about the real world of software a study from BSA about the importance of copyright enforcement. This study apparently does not even deal with the subject of patents."

EuroLinux is convinced that the wording of the directive will legalise US-style software patents in Europe "and remove all effective limits on patentability."

In the US, lawsuits over software have proliferated, and noted intellectuals such as Stanford Law School professor and technology pundit Lawrence Lessig have increasingly attacked the status quo.

Speaking at LinuxWorld last August, Lessig said the desire of entrenched commercial interests to control information is crushing the spirit of innovation that allowed the Internet to blossom.

Copyright and patent law, ostensibly designed to protect innovation, now have become tools large companies can use to maintain their dominance and control, Lessig said in his keynote address.

"The old will defeat the new unless you do something to prevent it," Lessig cautioned his audience full of programmers and advocates of open-source software at LinuxWorld. "Your life will be increasingly regulated by those who say what's permitted... The consequence of this will be to recentralise the process of innovation."

Among the more highly publicised examples of patents awarded in the US for what critics say are little more than business processes, are's patent for reverse auctions and's patent for one-click ordering, which simply remembers a user's details when they return to the site. Stung by criticism, Amazon chief executive Jeff Bezos later called for an overhaul of the US patent process to reflect the different nature of software innovation.

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