Patents In Europe

You might think the US patent situation is a disaster. You might not be aware the european one is in danger of moving from sanity to being even worse than the US situation.... Total Patentability is the new EPO buzzword...

Would you like to live in a society where policemen and judges are paid not according to how many investigations are done, but on how many people are put in jail ? Probably not. Yet in the USA that is exactly how the patent system operates.

The European Patent Office is now working on what they are pleased to call 'patent reform'. Like its US equivalent it is funded not by the patents it examines but by the patents it grants. They are working on removing all restrictions on patenting. That includes the restrictions on patenting software.

The European Patent Office operates beyond national laws and is uncontrolled by any constitutional court. Currently, no European government has effective control over them. Not only are these judges paid for guilty verdicts, they are not accountable to a higher democratic body. EPO officials don't even pay taxes. Needless to say, the patent specialists that governments attempt to use to control the EPO see a tax free life in the EPO as far more interesting than their current job.

Currently the EU recognizes that computer software algorithms are statements of pure mathematics and are not machines that can be patented. Now they want to change that. They don't have your freedom as a consideration. Their very basis gives them only a motivation that involves passing more patents, however silly and bogus they may be.

The consequences are horrific.

In the USA even strongly pro-patent bodies are attempting to restructure funding of the US Patent Office; but the damage is already done. Billions of dollars of consumers' money is spent by US companies on acquiring largely bogus patents and using them as weapons against one another. Their tactics include forcing companies to buy their products or face lawsuits. A bogus US patent costs millions to overturn, encouraging a thriving business in 'submarine patenting'. These are people whose goal is not furthering innovation but feeding off it by filing bogus patents that they feel large companies will infringe with mass market products. It is basically legal organised crime . James Gleick, a commentator in the US, said, 'The patent system is in crisis'.

The patent system was invented to promote innovation. When patents are restricted to actual devices and to narrow fields, and when patent examiners aremotivated only to grant good patents, the system has worked. Traditionally, Europe has followed this view. The results have generally been good.

The European Patent Office, motivated by its funding and expansionist intent, now wishes to change this. They want -total- patentability. This goes beyond even the US patents on software and business methods. They want you to be able to patent anything. Imagine a teacher discovering that a technique being used with a so-called 'problem child' is patented and they must discontinue it, leaving that child as an educational failure for life. In order to line their pockets tax-free and to keep their friends able to buy the best in sports cars, this is what the EPO want to leave you to bear.

In the software world this kind of unlimited patenting of simple ideas is far more dangerous than the existing Microsoft monopoly. Faced with legitimate reverse engineering that promotes competition (something the EU recognizes as necessary (European Council Directive 92/250/EEC)), companies will now be able to patent their file formats and interfaces to prevent a third party from interfacing with them. This is already happening in the US. Companies are patenting file formats. This gives them a monopoly on being able to read or write that data.

Groups of US companies trade patents, creating small cartels of people who have all the cards needed to play in a given market. New innovators are shut out, bought up cheap or simply sued out of existance. Europe has a thriving and, unlike the USA, stable mass of small innovative companies that will be stomped out of existance by such patent changes.

It is also becoming near-impossible to create standards in the US today.Things like the IETF and the internet protocols could no longer happen in the current environment. Attempts to create standards like WAP are again and again badly damaged or destroyed after having been hit by US patent claims.

If you think this issue is important please support the EuroLinux petition and lobby your politicians. The EuroLinux petition and related documentation can be found at

http://petition.eurolinux.org http://swpat.ffii.org

It is very important that the existing patent conventions are kept, to protect both the small businesses and the competitiveness of the European market.

It is vital that these changes are stopped, and ideally that the EPO is then brought back tightly under democratic political control.

And if you think this is a scare story, remember this: the US had to pass a law exempting surgeons performing surgery from patent violations.