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Actually, the SW Patents Battle is Heating up *Right Now* (was Re: If MS pulls plug-in support, who do I sue)

From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
Date: Mon, 08 Sep 2003 22:28:41 -0400
Message-ID: <3F5D3AD9.6AC5827C@RealMeasures.dyndns.org>
To: public-web-plugins@w3.org
Cc: patents@aful.org

Everybody, please listen up:

Actually, *right now* you have a chance to turn the tide by acting to
support the fight against software patents in Europe, where a hardy band of
activists at www.ffii.org have finally forced the discourse on this issue
open, with a highly successful demonstration this past August 27th, directed
against a proposal to articulate a bogus policy which would explicitly make
software patents legal in the European Union.

Europe is in the process of considering "harmonizing" with US patent law
precedent right now.  The European Parliament is meeting to vote on the
matter this September 22.

Add that political factor to the mix, as you consider the legal conundrum
posed to the W3C and the myriad constituencies the W3C serves, by this Eolas

W3C: add your voice in support.  You know what?  Sign FFII's petition
opposing software patents.  You are an international, highly visible body
whose voice would make a major difference.  Their petition is at:
http://noepatents.org/index_html?LANG=en (200,000 individuals; 2000

The noticeable increase in receptiveness that we find in the media to this
issue lately can only have been encouraged by the W3C's recent principled
stand against patented internet protocols.

And what's happening in Europe *as we speak now* is something that can turn
the tide, so software entrepreneurs might no longer feel the inclination to
take out patents because that's what everybody else is doing, and can
instead say, "Hey wait -- no.  Software is not like that." (Let alone
protocols and standards) 

I am working on putting together some materials to do outreach with on this
issue.  This email is just a frenetic blather to tip you folks off to the
present circumstances.  For now, here's a couple of ZDNet articles, articles
from Cordis and Heise,a John Dvorak column, plus a letter by economists
against the proposal -- plus check out the www.ffii.org site.

Developers gather to protest patents:

Protests delay software patents vote:

EU Software patents controversy heating up:

Protesters say legislation will stifle innovation:

"Patent Riots" of 2003:

Economists Letter Against EU Software Patent Proposal:

Seth Johnson

-------- Original Message --------
Subject: ZDNet: Developers Protest Software Patents
Date: Tue, 02 Sep 2003 13:53:12 -0400
From: "Seth Johnson" <seth.johnson@realmeasures.dyndns.org>
Reply-To: C-FIT_Release_Community@RealMeasures.dyndns.org
To: C-FIT_Community@RealMeasures.dyndns.org,
C-FIT_Release_Community@RealMeasures.dyndns.org, patents@aful.org,
DMCA_Discuss@lists.microshaft.org, DMCA-Activists@gnu.org
CC: rms@gnu.org

> http://news.com.com/2100-1008-5069279.html?tag=nl

Developers gather to protest patents 

By Matthew Broersma 
August 28, 2003

Several hundred demonstrators assembled in front of the European  Parliament
building in Brussels, Belgium, on Wednesday to protest a  software patents
directive that critics say would wreak havoc on  Europe's software industry.

The physical protest was accompanied by an online campaign that saw  more
than 600 Web sites, including prominent open-source software  sites, replace
their front pages with a warning about the directive. 

The protest centers on the proposed Directive on the Patentability of 
Computer-Implemented Inventions, which would, critics say, legitimize 
patents on business processes and on ideas software uses. In the  United
States, where such patents are allowed, large corporations such  as IBM
routinely stockpile patents to be used against competitors-- usually to the
detriment of smaller companies. 

Opponents want the directive to be rejected when it comes to a 
parliamentary vote on Monday.  They also want it to be refashioned in  more
restrictive terms. Economists, software developers, scientists  and some
large European information technology companies have  criticized the

The protest's organizers, which included software developer and  digital
rights lobbying groups from France, Germany, Belgium,  Catalonia, Spain and
Denmark, estimated that between 400 and 500  people took part in the
demonstration, with 500 the maximum permitted  by Brussels police.

The protestors, who carried black balloons, wore black T-shirts with 
slogans such as "Patent inflation is not a victimless crime," "Protect 
innovation against software patents" and "Software patents kill  innovation"
in English and French. Banners read: "Software patents  kill efficient
software development" and "Innovation not litigation."

For the benefit of onlookers and the news media, protestors carried  out a
mock funeral before tombstones reading, "Maybe you'll be next!"  in French
and German.

A troupe of mimes in black masks acted out a parable about software 
patents, involving a fistfight between a businessman in a suit and a 
scruffy, young software developer.

The outdoor demonstration was followed by a press conference in the 
parliament building that featured talks by Henk Barendregt, chair of  the
Foundation of Mathematics and Computer Science at Nijmegen  University in
the Netherlands, one of the computer scientists who is  petitioning against
the directive; Reinier Bakels, an attorney; and  Hartmut Pilch, the
president of the Foundation for a Free Information  Infrastructure (FFII),
which helped organize the protest.

Arlene McCarthy, the Labour MEP (Member of the European Parliament) 
responsible for steering the proposal through the European Parliament,  has
argued that the directive is necessary to harmonize the patent  regimes of
the European Union's member states and to give inventors a  consistent legal
framework for patenting their computer-related  innovations.

Some opponents of the directive say they support the idea of software 
patents, but believe the directive implements them in a way that will 
create more problems than it solves.

Matthew Broersma of ZDNet UK reported from London.


-------- Original Message --------
Subject: ZDNet: Protests Delay Software Patents Vote
Date: Tue, 02 Sep 2003 15:25:03 -0400
From: "Seth Johnson" <seth.johnson@realmeasures.dyndns.org>
Reply-To: C-FIT_Release_Community@RealMeasures.dyndns.org
To: C-FIT_Community@RealMeasures.dyndns.org,
C-FIT_Release_Community@RealMeasures.dyndns.org, patents@aful.org,
fairuse-discuss@nyfairuse.org, DMCA_Discuss@lists.microshaft.org,
CC: rms@gnu.org

> http://news.com.com/2100-1012_3-5070092.html?tag=fd_top

Protests delay software patents vote

By Matthew Broersma 
September 1, 2003

The European Parliament has delayed voting on a controversial software-
patents directive, after protests and criticism by computer scientists  and

The vote, originally planned for Monday, will now take place at a  plenary
session starting Sept. 22. 

Software patents have been likened to allowing a monopoly on the ideas 
behind stories, and opponents of the proposed Directive on the 
Patentability of Computer-Implemented Inventions claim it would  effectively
allow unlimited software patents. In the United States,  large companies
acquire arsenals of patents that they use to protect  themselves from
upstart competition. 

The directive, drafted by Labor Member of European Parliament Arlene 
McCarthy, has generated political opposition from the Greens and the 
European Socialist Party (PSE), among others. The German and French 
socialist parties are using the delay as an opportunity to raise MEPs' 
awareness of the issues surrounding software patents ahead of the late-
September plenary session. 

A demonstration last week in Brussels, Belgium, that attracted more  than
400 participants was organized by the Foundation for a Free  Information
Infrastructure (FFII) and Eurolinux, among other groups,  which also
persuaded several hundred Web sites to black out their  front pages in

A June vote on the proposal was put back amid criticism by MEPs that  the
legislation would institute a U.S.-style patent atmosphere that  would be
detrimental to European small businesses and open-source  software

The proposed software-patenting legislation is the result of a  European
Commission effort to clarify patenting rules as they apply  to
"computer-implemented inventions," a term that can be taken to  include
software. The patent offices of different EU member states  have different
criteria for accepting the validity of software-related  patents, a
situation that the Commission's proposal aims to remedy. 

MEP McCarthy said in a June analysis of the proposed directive that  there
were links between the patentability of computer-related  inventions and the
growth of IT industries in the United States. Such  patents aided "in
particular the growth of small and medium  enterprises and independent
software developers," she wrote, citing a  study on the issue carried out
for the European Parliament by London's  Intellectual Property Institute. 

But in a recent letter criticizing the directive, a group of  economists
poured scorn on any notion that software patents and  business growth are
connected, saying most economic research does not  support this claim. They
argued that the directive in its current form  would "have serious
detrimental effects on European innovation,  growth, and competitiveness." 

Matthew Broersma of ZDNet UK reported from London.


-------- Original Message --------
Subject: Heise Online: Software Patent Controversy Heating Up
Date: Wed, 03 Sep 2003 17:40:06 -0400
From: "Seth Johnson" <seth.johnson@realmeasures.dyndns.org>
Reply-To: C-FIT_Release_Community@RealMeasures.dyndns.org
To: C-FIT_Community@Realmeasures.dyndns.org,
fairuse-discuss@nyfairuse.org, DMCA_Discuss@lists.microshaft.org,
DMCA-Activists@gnu.org, fsl-discuss@alt.org
CC: rms@gnu.org

-----Original Message-----
From: Jonas Maebe <jonas.maebe@elis.ugent.be>
Date: Wed, 3 Sep 2003 17:14:38 +0200
Subject: Fwd: Controversy about software patents in EU is heating up

Translation of the Heisse article from another list.

>> Begin forwarded message:

From: Dirk Hillbrecht <dirk@hillbrecht.de>
Date: woe sep 3, 2003  16:39:36 Europe/Brussels
To: swpat@ffii.org
Subject: Controversy about software patents in EU is heating up

Hello everyone,

I just translated the very well written article of heise online about  the
patent issue into English and pass it hereby over to list.  Perhaps, it is
helpful for someone...


Controversy about software patents in EU is heating up

On monday evening, Arlene McCarthy, spokeswoman of the commission 
responsible for the more and more controversial EU directive about 
patentability of computer-based inventions, lost her temper. After the 
voting about the proposal has been delayed into the last parliament's 
session week of September, she complained about the "huge amount of 
desinformation" against the proposal in a statement for her british 
representative fellows. Her most suspicious sources for the  misinformation
seem to be open-source-driven groups and small and mid- sized companies, who
temporarily closed down their web servers last  week "due to software
patents" and demonstrated against the directive  in Bruxelles.

"This is an in-honest and destructive campaign, which spreads  confusion
about the targets of the parliament", she outraged. The  unexpected
lobbyists and demonstrants would assail the representatives  with
demonstrably false claims and organize phone call campaigns to  the offices
of the members of the parliament. If they succeeded, this  would be "the
deathblow for the cleverst and best European inventors,  whilst the US and
Japan call for license fees from European companies  for the usage of their
patents." The future of the whole European  economy was at stake.

This dramatically voiced press release, which is not yet released 
officially, is the newest example for the nerves to be all on the edge  in
Bruxelles and Strasbourg. The dispute is now more than one and a  half years
old and it seems as if noone had thought that Open Source  advocates could
become a serious lobbyist party at the European  stage.  Further support
came from small and mid-sized programming  companies like the Berlin music
software specialist Magix and renowned  European economists, who just
declared to have "serious concerns". The  strong opposition against software
patents seems to be simply  unforseen by the makers of the directive and
therefore unplanned.

Currently, the situation is listless. The proponents of the directive  as
McCarthy or commission member for the European Single Market, Frits 
Bolkestein, stress again and again that software "itself" should not  be
patentable. Only in conjunction with hardware and a "technical  function"
this kind of monopol protection should be grantable. The  opponents like
Hartmut Pilch from FFII say this to be a cant and to be  contradictive to
the written content of the directive proposal. In  their opinion, the paper
continues to miss any means against patents  on simple software logic.
Examples are the highly controversial Amazon  patents which seem to be found
worth for a patent by the European  patent office.

In the final state before the vote several changes have been  suggested. On
the one hand the patent lobby tries to invalidate even  the currently
existing "interoperability clause" 6(a) of the proposal.  This clause
protects conversion programs between different data  schemes against patent
claims. A reformulation of this clause, which  is also supported by
McCarthy, now anullates this exception. On the  other hand, small parties
like the Ecologists [Grüne] and other  liberal or radical groups have
introduced suggestions for changes.  They demand to change article 2(b) of
the proposal in a way, that the  often cited "technical contribution" of the
invention is defined in  the text. A possible definition could be based on
the "connection  between cause and effect in the usage of controllable
natural forces".

It is questionable whether a compromise will be found by the end of  the
month or not. Even parliamentarians from the German Conservatives,  who
followed the directive proposal more or less without a doubt so  far, do
mention the change suggestions now on request. They even  neglect explicitly
software to be a technical part on itself. The  British ministry of Foreign
Affairs, contrariwise, has sent a letter  to the country's members of the
European parliament, which supports  the McCarthy reasoning. The European
Socialists, of which McCarthy is  a member, plan to search and agree on a
common way to continue in this  week. (Stefan Krempl)


Best regards,
Dirk Hillbrecht

--- Dirk Hillbrecht, Hannover, Deutschland, Germany
----- dirk@hillbrecht.de - http://www.hillbrecht.de/

Forum swpat auf ffii.org


-------- Original Message --------
Subject: EU Software Patent Proposal Protested
Date: Sun, 31 Aug 2003 12:15:03 -0400
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
CC: patents@aful.org, rms@gnu.org

> http://dbs.cordis.lu/cgi-bin/srchidadb?CALLER=NHP_EN_NEWS&ACTION=D&SESSION=&RCN=EN_RCN_ID:20801&TBL=EN_NEWS

Draft legislation on patenting computerised inventions will stifle
innovation, claim protestors

[Date: 2003-08-28]

On 27 August, proponents of a 'free Europe without software patents'
gathered outside the European Parliament to protest against a Commission
proposal on the patentability of computer-implemented inventions. 

The proposal, which will be submitted to European Parliament for plenary
debate and a subsequent decision on 1 September, was initially drawn up with
a view to eliminating ambiguity in the way software-related patents are
handled, and differences in the way EU Member States interpret individual

Since then the proposal has passed through three different Parliamentary
committees, where MEPS have made amendments with the aim of better defining
the type of inventions to be covered by the directive. In particular, the
term 'computer-implemented inventions' has been amended so that it does not
cover computer software programs as such, but only devices such as mobile
phones, intelligent household appliances, engine control devices, machine
tools and computer program related inventions. 

However, those opposing the proposal believe that the amendments do not go
far enough and describe the proposed directive as a 'wolf in a sheep's
coat'. One of the protestors at the rally, Peter Gerwinski from the Germany
based foundation for a free information Infrastructure (FFII) told CORDIS
News that the Commission proposal's is deceptive. 'Those that have drawn up
the proposal are trying to give the impression that they are forbidding
software patents, while in fact they are introducing them.' 

Dr Gerwinski referred to the first draft of the proposal, which defined the
term 'computer-implemented inventions' as 'any invention, the performance of
which involves the use of a computer, computer network or other programmable
apparatus and having one or more prima facie novel features which are
realised wholly or partly by means of a computer program or computer

'The current draft of the proposal has been amended so the above reference
is very well hidden, but the message is the same: Software is patentable,'
he argued. 

Dr Gerwinski is a software developer by profession and runs a software
development company in Germany. He strongly believes that the Commission
proposal will have dire effects upon innovation and the future of small
software companies. 'When patenting of software is introduced in Europe as
it is in the US, which is planned in the long run, I will be forced to close
down my business and go and work for one of the big players,' speculated Dr

Despite the existing EU directive (91/250/EEC), which excludes software from
patentability rules, a total of 30, 000 software patents have already been
granted by the European Patent Office (EPO). 'The existing patents are
enough to forbid every software I write,' said Dr Gerwinski. 'Very basic
techniques like the progress bar have already been patented, meaning that
small companies are being squeezed out, leaving bigger companies to
monopolise the market'. 

However, according to MEP Arlene McCarthy from the Parliament's legal
affairs committee, the draft legislative resolution takes into account
concerns regarding the potential impact on small businesses. One amendment
in the draft legislation calls on the Commission to monitor the impact of
the legislation on small and medium sized enterprises (SMEs). 

During the rally, web administrators opposing the draft legislation
demonstrated the potential consequences of software patentability by
temporarily blocking access to their websites. 'We wanted to show what would
happen if a patent owner forbids the use of a specific piece of software -
all websites connected to that software would go down,' explained Dr

More than 150,000 people have expressed doubts about the proposal and have
signed a petition in support of 'a free Europe without software patents'.
Among the supporters are some 2,000 company owners and chief executives,
2,500 developers and engineers from all sectors of the European information
and telecommunication industries, as well as more than 2,000 scientists and
180 lawyers. They claim that patents and software do not go together and
that copyright is the best solution for protecting the work of those that
write software. 

'Patenting software is like patenting an onion and then forbidding its use
in recipes,' explained Tinne Van Der Straeten, an activist from the Belgian
group, the Young Greens. 

Dr Gerwinski agreed that this illustrates well the illogical nature of the
current proposal's objective. His organisation is calling on MEPs to examine
the proposed legislation more closely and then read the FFII's comments
before casting their vote on 1 September.

For further information about the draft legislation, please click here:


-------- Original Message --------
Subject: Dvorak: "Patent Riots" of 2003
Date: Fri, 05 Sep 2003 00:35:28 -0400
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
Reply-To: C-FIT_Release_Community@RealMeasures.dyndns.org
Organization: Real Measures
CC: developers@dotgnu.org

> http://www.pcmag.com/article2/0,4149,1236389,00.asp

Patent Riots of 2003 

By John C. Dvorak 
September 2, 2003 

Well, the title of this column may be something of an exaggeration, but
there seems to be a strong protest movement that has begun in Europe
regarding software patents. It could easily become a juggernaut that will
make legislative bodies reconsider the tendency to approve dubious copyright
and patent laws that benefit nobody but large corporations. In the copyright
arena, there are a lot of people complaining about how Disney made its
fortune using public domain stories and characters such as Sleeping Beauty
and Bambi (to name a very few), then spent most of its efforts preventing
any of its own creations from ever becoming public domain. That battle is
looming next. For now, the issue is how oppressive the laws are surrounding
software patents. And remember that before 1980 a software patent was
incredibly rare.

The protest fomenter is the Foundation for Free Information
Infrastructure—FFII (www.ffii.org)—based in Germany. It has organized a lot
of physical protests and now is promoting online protests to shut down Web
sites. Much traffic from shuttered sites gets redirected to the protest page
http://swpat.ffii.org/group/demo/. A laundry list of examples, the "list of
horrors" at http://swpat.ffii.org/patents/effects/index.en.html details many
of the complaints.

None of this is a surprise. The tendency to allow patents for just about any
concept has been encouraged by governments worldwide. That lawyers are
behind this is no coincidence. It's is a pure bonanza for them.
Unfortunately, it has the potential to kill innovation and progress. And
clearly this is not what the original concept of patents was all about.

I was the moderator for a Commonwealth Club debate between fabled Law
Professor Larry Lessig and Todd Dickinson a couple of years ago. Dickinson
was the director of the US Patent and Trademark Office under Clinton and a
huge promoter of the idea that business models should be patented. From what
I could tell, he thought everything should be patented. So I asked him if a
football play could be patented. He said probably not, since there had to be
something technological about it to qualify. "But what if this was a timing
play?" I asked. My jaw dropped when he said it could probably get a patent!
I was stunned at such an outrageous and stupefying notion. What can you say
to a guy like this?

For a moment I thought about some plays that might get patented. Since then,
I've heard tales about patents for how kids can swing on trees and thousands
of other idiotic patent ideas. Dumb patents have been around from the first
days, but software patents are a recent affliction, and they're going to
kill the computer business. Here are two examples from the FFII horror-story

The first is the Ugly TrueType and OpenType Font Display Patent. According
to the FFII site: "Rendering of Fonts is ugly and slow on Free Software
Systems. This is because when the TrueType standard was promoted by Apple
and Microsoft, they held a few patents which they never asserted. The
FreeType project has asked Apple to clarify the situation, but did not get
an answer. Instead, fearful customers of Linux distributors such as SuSE and
Redhat (sic) have demanded that any possibly infringing FreeType features be
disabled on these distributions. TrueType is the dominating font standard
and it is also a part of new standards such as OpenType, in which Adobe
participates. Adobe also holds a few patents on which OpenType infringes.
These formats must be supported if GNU/Linux/XFree users are to be able to
use existing fonts on their platform of choice."

And then there is one of many Adobe actions. This one is good since it
impinges on GIMP (GNU Image Manipulation Program): "In summer 2001 Adobe
attacked Macromedia for infringing on its US patent no. 5546528 which lays
claim to the idea of adding a third dimension to menus by grouping them as
tabbed palettes one behind the other. The European Patent Office (EPO) has
illegally granted EP0689133 with exactly the same set of claims and priority
date of 1994-06-23 on 2001-08-06, after five years of examination period.
Many programs, including free software such as The GIMP, infringe on this
patent and will therefore be at the mercy of Adobe, if the EPO's practice of
granting software patents is made enforceable by a Directive from the
European Commission."

I have been relentlessly looking at these and other issues and must conclude
that the way things are currently rigged, the big companies can easily lord
it over the small fry unless the small fry are also loaded. This is neither
a level playing field nor a productive environment.

What do I tell people who see this as a problem? I just tell them to patent
every idea they can and never produce any sort of product. It looks
impossible to develop anything in this environment except patents and
lawsuits. Yeah, like this is going to fix the economy. My conclusion:
support the FFII.

Discuss this article in the forums:


-------- Original Message --------
Subject: Economists Letter Against EU Software Patent Proposal
Date: Sun, 31 Aug 2003 12:39:51 -0400
From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
CC: rms@gnu.org

> http://www.researchineurope.org/policy/patentdirltr.htm

An Open Letter to the European Parliament Concerning the Proposed Directive
on the Patentability of Computer-Implemented Inventions   The undersigned
economists have grave concerns about the proposed Directive on the
Patentability of Computer-Implemented Inventions that has emerged from the
JURI committee of the European Parliament and that has been tabled for vote
on 1 September 2003.

While clothed as an administrative clarification, the proposed Directive
will provide opportunities and incentives for the construction of extensive
portfolios of software patents.  The exploitation of these portfolios will
have serious detrimental effects on European innovation, growth, and

Unlike most complex technologies, the opportunity to develop software is
open to small companies, and even to individuals. Software patents damage
innovation by raising costs and uncertainties in assembling the many
components needed for complex computer programs and constraining the speed
and effectiveness of innovation.  These risks and liabilities are
particularly burdensome for small and medium sized enterprises, which play a
central role in software innovation in Europe as well as North America. 
Moreover, within the ICT sector, expansion of patent protection has been
found to lead to an increase in the strategic use of patents, but not to a
demonstrable increase in innovation.

Copyright and other rules of competition permit small and medium sized
software enterprises to grow despite the overwhelming resource advantages of
large companies.  As a recent report from the National Academy of Sciences
in the US concluded: “[D]eveloping and deploying software and systems may
cease to be a cottage industry because of the need for access to
cross-licensing agreements and the legal protection of large corporations.” 
While some small and medium-sized firms will be able to prosper in this new
environment, many will not.  In particular, validating loosened standards on
patentability will cloud the prospects of Europe’s ascendant free and open
source software industry while preserving the dominance of present market

We are concerned that the analysis made available to Parliament by the
Commission and the JURI committee fails to acknowledge the problems of
strategic patenting that have been the growing focus of attention and
research in the U.S., as well as the unique characteristics of software
development and use.[1]  We urge the members of the European Parliament to
reject the proposed Directive in its present form and to request that the
Commission develop an economic analysis that properly considers the
potential consequences of software patenting for European software
developers and users.
Birgitte Andersen, Birkbeck, University of London
Paul A. David, Oxford Internet Institute and Stanford University
Lee N. Davis, Copenhagen Business School
Giovanni Dosi, Scuola Sant'anna Superiore
David Encaoua, Université Paris I
Dominique Foray, IMRI Université Dauphine
Alfonso Gambardella, Scuola Sant'anna Superiore
Aldo Geuna, SPRU, University of Sussex
Bronwyn H. Hall, University of California, Berkeley and Scuola Sant'anna
Dietmar Harhoff, Ludwig-Maxmiliens Universitaet
Peter Holmes, SEI, University of Sussex
Luc Soete, MERIT, University of Maastricht
W. Edward Steinmueller, SPRU, University of Sussex
25 August 2003

[1] For a detailed critique of the rapporteur’s explanatory statement see


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