European battle over software patents

http://www.wsws.org/articles/2003/dec2003/pate-d231.shtml

By Kerem Kaya and Mike Ingram

23 December 2003

The long-running battle over patents for computer software has reached a
new stage in Europe. An amendment [1] submitted on a Directive proposal
[2], already approved by the European Parliament (EP) about three months
ago, includes significant limits on software patentability. It makes
software explicitly unpatentable and regulates safeguards such as freedom
of publication and interoperation. The EP’s Directives can become law only
with the approval of the European Union (EU) Council. The approved
Directive is then relayed to the Member States for local approval.

Since the EP’s action, an intense campaign has been launched to kill this
decision in the EU Council. Defenders of software patents, amongst which
Ericsson, Nokia, Philips, Alcatel and Siemens are prominent, use the
confusion created by the current practice of the European Patent Office
(EPO). They base themselves largely on the owners of some more than 20,000
software patents already issued by the EPO, which diverged from the
European Patent Convention (EPC) laws and began granting software patents
openly in 1998. The EPO was established by the EPC [3], but in a clear
violation of the EPC laws [4] it continues its practice to this day.

The granting of software patents by the EPO, however, has not created a
clear mechanism for the patent owners because the issued patents could be
challenged in a court of law. The campaign to kill the amendment is an
attempt by the big corporations to rectify this situation.

Traditionally granted by governments, a patent is a means of protecting
ownership of inventions or designs that can be clearly and concretely
defined. Although they originated to protect an individual invention from
being stolen, today patent laws have emerged largely as a means of
protecting revenue streams for the big corporations. Nowadays, a patent
ensures that, for a prolonged period, the owner is entitled to a share of
any tangible income incurred via the use of his or her invention at the
expense of the cost introduced to the end user.

This model has run into complications since the 1980s with the
revolutionary growth of the computer industry. As computer software—the
set of instructions that tell computers what to do—became a major source
of revenue for the industry, copyrights were introduced in Europe for
computer software [5]. The copyright, however, protects only the computer
programme and not the ideas behind it. For example, if a programme that
prints text is produced and marketed, the marketed software can be
copyrighted. However, the idea to print text cannot be copyrighted.
Anyone, with sufficient knowledge to develop such software, can develop a
new computer programme that prints text and market it without the fear of
being sued.

The computer industry has now grown to such dimensions that copyrighting a
software product does not satisfy the appetite of powerful sections of the
industry. Their aspiration goes beyond owning the product. They want to
own the way the product works, looks, performs, etc. For this, they must
present the software as though it were an invention and try to cover it
with patents.

In reality, however, software cannot even be defined for patent purposes.
Developing software requires detailed analysis based on its specific
requirements—that is, its tangible need—much more than any other
technology. In this complex process, the product never gets finalised and
evolves forever, even after it has been released for use. This makes
software akin to social art, as the ideas of many continuously pour into
it. This is best demonstrated by the rise of Open Software, in which the
human-readable code is distributed, encouraging an open development
platform to which anyone with the necessary skills can contribute.

The controversial nature of software patents, however, did not stop the
lawmakers from proceeding with full force. They coined a term, “computer-
implemented inventions,” that supposedly clarifies which software
constitutes an invention and which does not, by claiming that
its “technology” part can be separated from the “art” part. The original
directive states that the “invention” must make a technical contribution
to the state of the art in a technical field in order to qualify for a
patent [6].

The directive also allows so-called “programme claims,” which could permit
patenting the description of a technology rather than the technology
itself, sometimes referred to as “information patents.” According to this,
software authors and Internet service providers (ISPs) can be sued for
direct patent infringement everywhere in the EU, as soon as they make a
programme with the claimed features available somewhere on the Internet.

Another area in which software patents are becoming critical for the
market is the patenting of a “business method.” Normally, this kind of
patent is widespread in the industry [7]. But when software is involved in
the business method, things get further complicated. If software is not
patentable, the business method itself cannot be examined for patent. This
has now changed in the US after the courts and the US Patent Office
allowed patents on business method inventions [8].

The implications of patenting software are immense. In the 21st century,
computers influence every aspect of social life. If patents were allowed
for software, human creativity, in one of its most advanced forms, would
be subject to jurisdiction. Faced with the potential of being sued, this
would discourage and alienate creative individuals from attempting to
build useful software or add value to existing products. Even companies,
small or large, would hesitate to develop new software due to fear of
violating patents.

This is concisely explained by Bill Gates, the founder of the giant
Microsoft Corp., in an internal memo of 1991: “If people had understood
how patents would be granted when most of today’s ideas were invented and
had taken out patents, the industry would be at a complete standstill
today.” After sharing his opinion on the consequences of patents with his
staff, he then makes his predatory but revealing conclusion: “The solution
[for us] is patenting as much as we can. A future startup with no patents
of its own will be forced to pay whatever price the giants choose to
impose. That price might be high. Established companies have an interest
in excluding future competitors.”

In practical terms, software patents would also literally render any
software copyright meaningless, as a copy of software could contain
hundreds, if not thousands, of patents, most of which would be difficult
to identify.

Even though the patents, like copyrights, expire after an extended period,
this helps little. The history of ideas demonstrates that they are fueled
by a particular environment and, not infrequently, flourish more or less
at the same time. Thomas Edison would never be in a situation to finish
off the works of others for a practical incandescent light bulb, had he
lived in the Stone Age. An idea may then turn into science and technology
due to the popular support given to it in the form of joining ideas and
other technologies upon which it rests. If this process is killed at its
initial stages, due to one individual or company holding a patent for the
idea, the momentum will rarely reach levels that push the idea to take
off. Thus patents, originally intended to fuel innovation, today act in an
opposite manner, suppressing it.

Defenders of software patents argue that they will fuel research and
development (R&D), but a report commissioned for the UN Conference on
Trade and Development Secretariat in 1990 argued the opposite: “Patents as
an instrument to stimulate innovative activities appear to be of little
relevance for small firms. It was found that no significant changes in R&D
behavior would take place if the patent protection time were reduced or
extended. Also, for large firms, the R&D behavior seems to be rather
independent of the availability of patent protection. The survey showed
that increased patent protection time is likely to provide, at most, a
modest stimulus for R&D activities. Chemical, and particularly
pharmaceutical, firms appear to be more sensitive to such changes.”

Under the capitalist system, ideas, and all forms of artisti,c scientific
and technological endeavours are treated as forms of private property.
Patents, together with copyright and trademarks, are classified as
intellectual property, with complex rules relating to the use,
reproduction and licencing of inventions and creations.

As with all forms of bourgeois property, the producers of intellectual
property are alienated from the products of their labour. Employees, for
example, enjoy no rights, or control, over the discoveries or artistic
creations they make in the course of their employment. Either by contract
or by common law, these become the property of the company for which they
work.

Vast progress in computerisation and other scientifi,c medical and
technological developments create both the necessity and possibility for
the social collaboration of humanity on a world scale. Social needs have
become increasingly complex and the technologies that support them have
become ever more socialised. Where Marx spoke of the socialisation of
machinery and labour, we now witness the socialisation of science and
technology. It is impossible in today’s world to achieve results in
science or technology without collaborating with others around the globe.

The demand for software patents highlights the basic conflict of interest
between the giant corporations, which see patents as simply another weapon
in the accumulation of private profit, and the interests of the broad mass
of ordinary working people throughout the world. The defence of
intellectual progress requires not only an opposition to any extension of
patent laws, but a struggle against the social system that gives rise to
these.

The example of the EPO, which, under the pressure from the market,
violates the very law under which it was created, demonstrates that such a
defence cannot be left to institutions set up within the confines of the
profit system, on a national, European or world scale.

Notes:
1. Amendment number A5-0238/84, submitted by Joachim Wuermeling, on behalf
of the Group of the European People’s Party (Christian-Democrats) and
European Democrats (PPE-DE).

2. Directive for “Patentability of Computer-Implemented Inventions,” COM
(2002) 92 - C5-0082/2002 —2002/0047(COD)

3. See EPC Article 4.

4. EPC Article 52, 2c explicitly declares that “schemes, rules and methods
for performing mental acts, playing games or doing business, and
programmes for computers” are not regarded as inventions.

5. Under Directive 91/250/EEC of May 14, 1991

6. Article 2 of original Directive [2] defines a “computer-implemented
invention” as “any invention implemented on a computer or similar
apparatus which is realised by a computer programme.” It then
continues: “It is a consequence of this definition that the ‘novelty’ of
any invention within the scope of Directive does not necessarily need to
reside in a technical feature.” It also states, in the same Article, that
the “technical contribution” is a “contribution to the state of the art in
a technical field which is not obvious to a person skilled in the art.”

7. This is so despite EPC Article 52, which clearly excludes “methods
for...doing business” as invention.

8. One famous example is Amazon.com’s 1-click patent, which it obtained on
September28, 1999, against its competitor Barnesandnoble.com. It is a
method of placing an order when purchasing an item via the Internet. By
patenting this “method,” Amazon.com ensured that no others could implement
this idea.

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