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Software Patent Protest Moves from Street to Internet

By John P. Mello Jr.
Aug 26, 2003 1:18 PM PT

A protest tomorrow in the streets of Brussels, Belgium, over a proposed European law on software patents will spill into the Internet as more than 600 Web sites are expected to modify their operations in support of the dissenters.

Software Patent Protest Moves from Street to Internet

The online protest is being organized by the Foundation for a Free Information Infrastructure (FIFF). The group is asking Web sites of every stripe to shut down for the day in support of the protesters and to replace their home page with a protest page.

The sample page at the FIFF Web site reads in three languages: "This page is temporarily closed in protest against software patents. Web sites may soon be closed down regularly due to software patents. Software patents can get you prosecuted for publishing texts you wrote yourself."

Will Hurt Little Guys

According to organizers of the street protest, which will start at noon Wednesday in front of the European Parliament (EP) building in Brussels, the proposed law, called a directive, will hurt small developers.

The directive "would impose U.S.-style unlimited patentability of algorithms and business methods such as Amazon One-Click shopping," Benjamin Henrion, one of the protest organizers, said in a statement.

"Leaders of the scientific communities and software business world took the directive proposal apart and condemned it in every respect," he added. "Yet in June the EP Legal Affairs Commission endorsed this proposal with further amendments that make it even worse."

Scientists Rap Directive

Earlier this year, 31 scientists signed a petition submitted to the EP calling for the legislative body to "make impossible, clearly, for today and tomorrow, any patenting of the underlying ideas of software or algorithms, of information processing methods, of representation of information and data, and of the interaction between human beings and computers."

In a FAQ on the issue, the European Union said the proposed directive is necessary to harmonize what has become a "bundle of national patents which have to be validated, maintained and litigated separately in each Member State."

Without a directive on these kinds of patents, the EU contends, the scope of what can and cannot be patented will fall to the judicial bodies of the European Patent Office without the opportunity for "coherent political reflection" based on the big picture.

"The proposed Directive therefore sets clear borders to what would be patentable in the EU and what would not," the EU said.

But opponents of the directive argue those borders will be the walls of a coffin for EU software developers and small businesses, which will have to compete in a U.S.-style system in which large companies use patents to squeeze licensing fees from smaller competitors.

That characterization of the U.S. market appears alien to some intellectual property experts. "I haven't seen that in my experience," Matthew Sampson, a partner with the law firm of McDonnell, Boehnen, Hulbert & Berghoff, told TechNewsWorld. "I've seen a number of small companies take advantage of patent protections here."

Diverging Paths

Presently, Sampson asserted, the EU and the United States are on diverging paths with respect to the protectability of software, and particularly business methods. At this point, he said, the United States affords significantly broader patent protection to software.

"The European Patent Office has adopted rules stating that it will not even conduct a search on patents directed solely to software," he noted.

If the proposed directive became law, he said, it would bring the EU "back into alignment with the broader protection that's available here."

Welcome Development

That would be a welcome prospect for some IP lawyers on the U.S. side of the Atlantic.

"I welcome the anticipated lessening of barriers to business method software patents in the EU," Kent Genin, a litigator with Brinks Hofer Gilson & Lione, an intellectual property law firm in Chicago, told TechNewsWorld. "There should be more opportunities to protect business models and more incentive to invest in software development, generally."

Don't Need Protecting

Some software EU developers, though, want no part of any security that the proposed directive would provide them.

"We believe the directive will open the floodgates for software patents in Europe," maintained Håkon Wium Lie, chief technology officer of Opera Software, maker of a Web browser by that name.

"This is a threat both to open-source developers -- who clearly cannot afford to pay licence fees -- and to companies like Opera Software," he continued. "We don't need the 'protection' that the directive wants to give us. We prefer to protect our innovations like a long-distance runner: by being faster than our competitors."

"Also," he added, "software patents threaten the Web as an open infrastructure where everyone can participate, since open standards are blocked by software patents."

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