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Software Patents in Europe

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Software Patents -- a danger to democracy

6 June 2005

Josep Borrell Fontelles is the President of the European Parliament.

Dear President of European Parliament,

On July 6th, European Parliament will have to decide on the "Software Patents" directive. By relying on undefined terms and ineffective limits, the text that the Council has handed to the Parliament would allow patents on software standards, business methods, and website development.

Unfortunately, with all the technical and legal debates about the text, the real world effects of software patents are often no longer discussed. FSFE would like to take this opportunity to discuss five of the 30,000 software patents so far granted by the European Patent Office. These would gain additional legal grounds to be enforced against Europeans for 20 years. Of course, the rate of software patent application will also rise sharply if this directive passes in its current form.

EP0287578 covers compressed audio including the "mp3" format. EP0933892 covers making videos available via the Internet. EP0633694 covers video-on-demand, such as transmission of live events.

These three monopolies on common techniques for distributing information would gain additional legal grounds overnight. One example of a webpage where all three patents are being infringed is the "Hearings of the Commissioners-Designate" page on the Press Service section of the europarl website.

EP0689133 covers the use of "tabs" on a webpage, that can be clicked to see the information related to the tab's label. EP0537100 covers the use of reduced-size images ("thumbnails") as clickable links to full sized image.

The Conciliation Committee Photo Gallery of the europarl website uses both of these techniques. Thumbnails for the photos, and tabs for the languages that can be chosen.

If that proliferation of the patent system to include software ideas is not reversed, the European Parliament, and the majority of MEPs -- most of whose websites build upon these or other patented techniques -- will remain patent infringers. Naturally, the political value of MEPs acts as a safeguard against litigation. The patent holders will permit the MEPs to use those techniques, or at least keep turning a blind eye to their infringements.

This is not true for ordinary citizens and businesses, however. Their most economical solution is to play dumb and hope they don't catch the eye of a patent holder. However, something like a venture capitalist investment, might inspire litigious desires.

All five patents are commonly infringed, generally by people who are unaware of the existence of the patent. If a website owner was made aware of the last two patents, they could redesign their website, it might harm their site's usability, but they could avoid those patents. The first three patents mentioned make it difficult to impossible to offer video or audio over the Internet, in any way.

It is therefore up to the holder of the software patent to freely determine which citizen can seek and impart the first hand information about what their representatives are doing, and which cannot. The very basics of a democratic society are in danger.

As is shown by the europarl website, software development is not only undertaken for commercial purposes. It is done for social benefit and for practical reasons. This is in contrast to the traditionally patentable fields such as pharmaceutical or machinery, where participation in development or distribution implies that the company has sufficient funding to seek legal advice and possibly defend themselves in court or counter-litigate if the need arises.

Of the example patents above, only one is owned by a European company, the other four are held by non-European entities. This is roughly equivalent the overall situation of software patents in Europe, of which only 23% are held by European entities.

In the interest of European democracy and economy, we encourage you to take a firm stand against software patents and vote for the amendments that define terms clearly and put a limit to the patenting of software ideas.

With kind regards,

Georg Greve
Free Software Foundation Europe (FSFE)