Tuesday, January 17, 2006

Software patent fairtytale

There is a terrific article on Groklaw by a UK lawyer, Cristian Miceli, covering the story of developments on the software patents front in the EU and the UK in 2005. The legalese up front on the UK cases can is a bit heavy but mostly the story is very well told. Sample:

"When you wish to conduct an independent survey about whether it is good to be catholic, if you are only going to ask the pope and his cardinals, you cannot call the results objective.

We have asked the pope and cardinals of the patent system and accepted their version of events not only on what the CII Directive intended to achieve but, somewhat more subtly, whether software patents are desirable. We, as lawyers, should recognise the conflict of interest but let me instead use the words of a more enlightened cardinal:
“most patent lawyers -- most lawyers in general - …. unthinkingly spout pro-patent slogans. That is because most patent and IP and even other attorneys with an opinion on this issue mindlessly parrot the simpleminded economics with which they were propagandized in law school. Virtually every patent lawyer will reiterate the mantra that "we need patents to stimulate innovation," as if they have given deep and careful thought to this…..It does not take a genius to figure out why most patent lawyers are in favor of the patent system; and it is not because they have really studied the matter and dispassionately concluded that society is better off with a patent system -- it is because they don't want to see the system that pays the mortgage for them eroded or abolished.”2

This article is not meant to be a sermon, what I have tried to do is independently review the issues at stake and leave it the reader to make his/her own analysis. However, if I am to preach about objectivity, then that must start with me the author. Do I believe in intellectual property rights (“IPR”)? Yes I do and, as part of this, I see the benefits that patents can potentially bring in certain sectors. However, as one law professor recently commented, “good policy does not just consist of ‘more rights'; it consists of maintaining a balance between the realm of property and the realm of the public domain”.3

I do not work nor have any financial interest in an open source software company nor am I getting paid, whether directly or indirectly, for writing this article or for expressing a particular view point. In fact, rather than standing to gain financially by encouraging the reader to adopt the views that I am espousing, I am more likely to have put a damper on any prospect of having a lucrative in-house position overlooking the M4 motorway (perhaps a good thing).

The CII Directive: the fairy tale

Myth 1: the European Competiveness Council, the European Commission and the Council of Ministers, as the white knights of European democracy and with our (European) best interests at heart, gallantly proposed a directive which, in its several drafts, sought to do nothing more than to codify and unify our existing laws on patents (commendable) in the area of computer related inventions whilst at the same time not extending the scope of patentability.

It is a wonderful fairy tale. Unfortunately for the knights, they were robbed by a bunch of European peasants, knocked to the ground once, got to their feet as if nothing had happened (and didn’t change their noble rhetoric) and proceeded to get knocked down for the second time, this time by more peasants and, if not a little belatedly, one or two noble men.

Those who are not interested in an objective debate about the benefit of software patents for the software industry want you to believe that the fairy tale is true and that MEPs for the last couple of years have been misled by a group of hairy open source hippies hell bent on preventing such unification of existing laws.

Upon what basis do they claim so valiantly that the CII Directive was not seeking to change the law (i.e., extend patentability) and that the hairy open source hippies, or peasants in my (or their) little fairy tale, got it wrong? Well, to put it bluntly, because these bastions of European democracy told us that this was the case. In other words, the pronouncements of these institutions is rightly to be treated as divine against the heretical statements of the open source community who should be burnt at the stake for having the audacity to question the knights’ intentions and disrupt the march of software patents across the world. The history of the passage of the CII Directive through the EU institutions exposes this myth.

If the actual words of the various drafts were so clear, why did the EU Parliament propose substantial amendments at the first reading, why did the Legal Affairs Committee of the European Parliament (JURI) vote overwhelmingly to restart the legislative process and, finally, why was a directive rejected for the first time in European history at its second reading? Was this purely the result of MEPs being misled by a misguided open source software community? To continue to make such a claim in the light of the history of the CII Directive is asking us to accept that MEPs are incapable of undertaking a simple analysis of the patent system or making independent judgements. It also discredits one of the greatest grass roots movements in recent European political history.

European laws should be made for the benefit of Europe and its citizens. This may sound like common sense but for many arguing for software patents there seems to be an assumption that EU institutions should be working in the interests of the large IT corporations (the minority companies in the IT industry – see below). Laws should only be passed if they serve the public interest. For this to happen, or at least have a chance of happening, there needs to be a democratic and accountable legislature deciding these laws.

The Commission and Council of Ministers are not democratic; they are not elected by the public or directly accountable. The course of the CII Directive through the EU institutions is marked with several unsavoury incidents where the Commission and the Council of Ministers failed to give heed to the overwhelmingly clear wishes of the European Parliament, the only democratically elected EU institution. These failures, aside from the substantive debate, have left many question marks on the lack of democracy and transparency within the Commission and the Council of Ministers. As lawyers, why are we failing to comment on these shenanigans? Why was the Commission and Council of Ministers so keen to push through their draft –- referred to ironically as the 'Common Position” but which could never be described as having anything in “common” with the views of the EU Parliament -- at all costs?

Had it not been for the undemocratic insistence of the EU Commission and Council of Ministers being so well documented by the anti-software patent lobby, coupled with the now notoriously unethical lobbying tactics of the pro-software patent lobby (reported to the EU anti-fraud commissioner by European lobby watchdogs4 -- I have never seen more dirty noblemen and such clean peasants), I and many others would have been none the wiser as to how far short the actual text of the proposed CII Directive fell from the boldly stated aims."

Not a fan of software patents, the Commission or the Council of Ministers by the sound of it.

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