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Software patents vs Microsoft antitrust suit: European Commission is going to undermine some of its best work

2 May 2005

Mr. Charlie McCreevy is the member of the European Commission responsible for internal market and services.

Dear Mr. McCreevy,

The European Commission is currently involved in a historic antitrust suit with Microsoft. After similar proceedings have failed in other parts of the world, the Commission is spearheading the last effort to return the chance of competition into the desktop and workgroup server market. In addition, as the decision of the European Court of First Instance has confirmed, this is urgently needed. This is why FSFE is supporting your work.

Unfortunately, that unique success is now in danger of becoming a meaningless victory. With the current Common Position on the directive on "computer implemented inventions" -- adopted 7 March 2005 by the European Council -- software patents will cover the interfaces and file formats.

The central issue of the antitrust case is the protocols that are "used on the wire" -- without these, only Microsoft can write software that is interoperable with it's desktop monopoly -- thus extending their dominance into the workgroup server market. As FSFE has pointed out in support of the Commission, this information is not secret because it is valuable, it is valuable because it is secret.

An analogy can be drawn by comparing computer networks to telephone networks. What Microsoft has done is declare the specific frequencies used to dial the numbers one and zero "multi-million dollar investments". The European Commission rightly did not allow Microsoft to confuse convention with invention.

The current proposed directive grants patents on interfaces and file formats, the digital equivalent of spoken languages, this proposal supports monopolising conventions as if they were inventions. Allowing Microsoft to extend its monopoly beyond the reach of any antitrust commission in the world, it comes as little surprise that Microsoft is strongly supportive of the current draft of the directive.

Therefore, the end result may be that Ms Kroes might find a European antitrust law victory an empty one: Having forced Microsoft to publish the information necessary to achieve interoperability, it might have become illegal to write interoperable software. We are therefore concerned that in a few years you may be forced to draw the conclusion that Europe has "won the battle, but lost the war".

We jointly urge you and the European Parliament to mandate a clear definition of the innovation in which software may be included, but which may not consist of software alone. It is seminal to firmly make the statement that data processing and transmission are excluded from patentability.

That way Europe can win both the battle and the war.

With kind regards,

Georg Greve
Free Software Foundation Europe (FSFE)