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EC/BSA Collusion Detected on 'Tougher' Software Patent Proposal

From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Date: Thu, 21 Feb 2002 16:11:50 -0500
Message-ID: <3C756296.D1470F04@RealMeasures.dyndns.org>
To: www-patentpolicy-comment@w3.org

(Forwarded from Interesting People list,

-------- Original Message --------
Date: Thu, 21 Feb 2002 14:22:58 -0500
From: Dave Farber <dave@farber.net>

------ Forwarded Message
From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Organization: Real Measures
Date: Thu, 21 Feb 2002 14:06:51 -0500
To: farber@cis.upenn.edu


Don't believe this supposedly "surprised BSA" spin.  Thought
you'd like to see a couple of pieces from EuroLinux on this
proposal.  Mingorance gets to play shocked about some
details, I guess, while the effect of this piece is that
people will think this proposal counters the "big bad" BSA,
thereby helping rationalize a reform of software patent
policy and thwarting EuroLinux's strong movement to *stop*
software patents *in principle* in Europe.  Their petition
against software patents currently has 100,000 signatures,
including a large contingent of software companies.

Seth Johnson


EC/BSA Collusion Detected

For immediate Release

Paris, Munich, Amsterdam - 2002-02-19 - The European
Commission is likely to approve this Wednesday a proposal of
directive on software patents. EuroLinux has managed to
obtain a draft version of the proposed directive. The same
document was sent to a few official representatives in
European national governments.

Incidentally, the author of this document, according to the
Microsoft Word file, is Francisco Mingorance
(franciscom@bsa.org), patent expert and director of public
policy at BSA (Business Software Alliance), an association
which represents the interests of large US software
publishers in Europe.

Software patents are a major legal issue in the information

< SNIP >

EuroLinux hopes that, by making public this draft document,
the European Commission will be encouraged to publish
without delay the final version of the proposed directive,
at the same time as the expected press release and to
provide the same level of information to European Citizens
as to the BSA. 

Draft Directive

Please download the draft directive at



European Commission 2002-02-20:

Draft Proposal to Make All Ideas Patentable

The European Commission proposes to legalise the granting of
patents on 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. This text disregards
the opinions of most if not all respected software
developers and economists, instead relies on dogmatic
statements about patents in general as well as some
unsubstantiatable claims and even some outright lies, citing
as its only source of information about the real world of
software a study from BSA (anti-piracy alliance dominated by
Microsoft and a few other US vendors) about the importance
of copyright enforcement. This study apparently does not
even deal with the subject of patents. The draft itself was
apparently written on behalf of the EC by an employee of
BSA. Below we cite the complete proposal, adding some links
and annotations.

< SNIP >

Now who wrote this document and what does BSA have to do
with it? 

The final version of the document was adopted by the
European Commission on the morning of 2002-02-20 and
published at noon of that day on the web page of the
Industrial Property Unit together with an press release and
an FAQ. 

An almost completely identical directive draft proposal
(PDF, MSWord) started circulating among national government
officials in mid february. Although it is dated 2001,
knowledgable people said that it was "hot off the presses
from Brussels". Interestingly, the MSWord version contains a
hidden author's field with the name Francisco Mingorance.
This proves that he has at least revised the draft, and
further evidence also suggests that he is in fact the main

Mingorance is the current director of public policy for
Europe at BSA and a longtime subscriber of an
eurolinux-related patents mailing list. Until recently, he
used to work as a fundraising manager for an AIDS help
organisation in Geneva. In that function, he tried hard to
defend the patent system against what he called
"vilification" by the supporters of the South African
government's battle for lower drug prices. In this and other
discussions he demonstrated a thoughrough acquaintance with
the patent system. 

BSA's by far strongest corporate member is Microsoft. While
BSA as a whole has no interest in the patent system,
Microsoft is engaging in an active crusade for everything
that hurts open source software, including software patents.
Microsoft's PR strategy is simple: it links proprietary
software to "intellectual property", "wealth of nations" and
"jobs", while opensource software is claimed to be opposed
to all these. Likewise, patents are linked to proprietary
software and the patent critics are portrayed as advocates
of some unrealistic "open source business model". Although
these assertions are grossly untrue -- proprietary software
is, just like free software, based on copyright and
threatened by patents -- they seem plausible from a naive
reader's point of view. Mingorance's proposal uses this same
strategy. It cites some obscure BSA studies about the
importance of proprietary software to help cultivate this
misconception while completely ignoring all informed
discussions about the problems of software patents.

It should be noted that the EU Commission's Greenpaper cites
Microsoft as a success model and bases its assertion that
"software patents have had a very positive impact on the
software industry in the US" solely on the argument that
"Microsoft already owns 400 software patents".

< SNIP >

And finally:

-------- Original Message --------
Date: 20 Feb 2002 14:22:28 +0100
From: PILCH Hartmut <phm@a2e.de>
To: patents@aful.org

Paris, Munich, 2002-20-02 - The European Commission has just
published a press release on software patents, as well as a
directive. Its content is is, apart from a few minor wording
differences, exactly the same as the BSA document EuroLinux
obtained last week. However, the document of the directive
is incomplete. All the arguments which allows to decide
whether this directive is legal or not according to the Rome
Treaty have disappeared. The press release also contains
many sentences which are in contradiction with what is
written in the directive.

< SNIP >

In particular, the commission uses a 1998 BSA report to
justify the directive. This BSA report contains no arguments
related to patents!  Also, the Commission has neglected
official reports in France and Germany which show the
negative impact of patents on innovation and also show that
copyright is the prefered protection of SMEs for the
software economy.

The directive fails to define what is technical. It
considers software to be technical. Therefore, this
directive allows to patent anything innovative implemented
with software, including business methods.

In fact, the directive goes even further than that.  It
removes the concept of 'patentable inventions' from the
European patent system, deciding instead that any
"computer-implemented" idea per se "belongs to a field of
technology" and is therefore a patentable invention.  It
legalises more than 30000 patents on trivial computing and
business ideas already granted by the EPO under this
regime.  The only question where it deviates from EPO
practise is that of the claim form (see our explanations in
the EuroLinux Warning[1]).  However, even here the directive
is worse than we thought: it contains a loophole through
which computer programs can nonetheless be claimed as
"computer program products", and it does not explicitely
disallow program claims.

We urge everyone to read carefully the directive rather than
the press release. The press release contains many sentences
which say the exact opposite of what is actually written in
the directive.  This directive is not a moderate compromise
proposal but a rare piece of patent extremism.

------ End of Forwarded Message

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