I agree that Nokia vs. Apple/Apple vs. Nokia isn't a Mexican standoff but that Nokia probably owns the far more fundamental mobile patents. However, the problem that Nokia has in this is that its most fundamental patents in the mobile space are part of GSM and other standards. That fact doesn't expropriate Nokia but at some point they could come under pressure that those are patents that should be made available on RAND (reasonable and non-discriminatory) terms. Then Nokia could argue that it is, in Nokia's view, not at all unreasonable to ask Apple for a cross-licensing deal because otherwise Apple could exclusively control some of the more recent technologies (multitouch etc.) while Nokia (and similar vendors) would be expected to grant licenses to their patents only because they're part of older standards definitions.
Apple faces the typical problem of a late entrant: even if you obtain some patents on new technologies, you still need the underlying old technologies and those patents are generaly still valid, given that patents expire only after 20 years (except for a failure to pay renewal fees, which won't happen if the patent holder is Nokia and the patents are valuable). That's why in an area of incremental innovations patents may not be even remotely as helpful to innovative late entrants as many people are led to believe.
The Wired article on mobile patent lawsuits was, quite apparently, written just before the latest front was opened: HTC yesterday announced that it is now "suing" Apple.
However, at a closer look it becomes clear that HTC didn't file a lawsuit in the traditional meaning of the word, which would mean that they take Apple to a court of law. It is only a complaint with the US International Trade Commission. By contrast, Apple (in March) sued HTC in an actual court of law plus lodged a complaint with the International Trade Commission. Only lodging a complaint is rather weak. Fortune/CNN lists the five patents in play and points out that it's only a complaint, not a suit filed with a court, and is not impressed.
On my FOSS Patents blog I comment on developments concerning patents and Free and Open Source Software, and I see the squabble over video codecs as a closely related issue. In both cases, Apple is on the side of the large patent holders and Google favors "open" alternatives. Android is a Google-backed project, and as I explained in a three-part sequence of blog posts on video codecs, Google so far backs Theora and it might now try to establish VP8, after open-sourcing it (which may happen very soon), as a codec standard. Apple, however, backs MPEG LA's H.264 (even though Apple is only a small contributor to the MPEG patent pool; for an example, Apple contributed only one patent out of 1,135 to the H.264 pool).
There's nothing more unpleasant for a proprietary/closed-source vendor to deal with than free/open-source competition. Patents then come into play and can tilt the scales in favor of entrenched proprietary/closed-source players. Sometimes it's sufficient for the major patent holders just to ensure that the "free" alternative won't be completely free, neither completely free as in free beer nor as in free speech. The use of patents against vendors of Android-based phones mobile phone operating software will probably result in increased prices and possibly also in reduced functionality of Android-based phones. The use of patents against open-source video codecs, which Steve Jobs said would happen but without providing any specifics, would have a similar effect for Theora and, possibly, VP8.
I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?
Your question is right on. MP3 patents are pure software patents: compression algorithms and some of the patents don't even define a particular compression algorithm but just methods for how to organize compression (such as an iterative approach: compressing with increasing lossiness factors until the result fits into an allotted amount of memory.
In a software-patent-free world, MP3 would not be patentable either. However, substantive patent law is a complex and tricky field and differences can be subtle, resulting in one patent being upheld by a court and a seemingly similar one being thrown out. Sometimes the difference is just in how the patent application is worded. Some attorneys do a better job of presenting their patents as "technical inventions" than others.
The FFII generally referred to them, as I wrote on my blog, as "the patent movement", meaning national government officials whose careers are tightly linked to the patent system.
Some would speculate that it was killed because certain interests decided that the existing muddy EU patent situation was preferable to permitting the EU Parliament to legislate against Software Patents.
All of that is right "per se";-) but let me clarify that the European Parliament's amendments wouldn't have resulted directly in a new law. The Parliament's amended bill would have gone back to the EU Council. In that one, the proponents of software patents had approximately 70% of the votes, and roughly 30% were needed to block a proposal. So the Council's qualified majority in favor of software patents was in doubt at the time (we, the opponents of the proposal, actually believed that we had a blocking minority in place at the relevant time), but they still had more than twice as many votes in the pro-software-patent camp as the number they would have needed to block a proposal they wouldn't have liked. What the pro-software-patent camp feared, however, was that a heavily amended bill going back from the Parliament to the Council could hav resulted in a compromise unfavorable to their interests (which is exactly what we feared as well from our point of view, and that's how rejection was brought about).
I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.
Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which is why I would say the answer to your question is 99.99% No, if not higher than that. And there certainly isn't a direct appeal mechanism in place.
Who are the persons? Unelected conspirators govern the EPO? Bilderberg group?
I don't think the staff union of the European Patent Office or the FFII wanted to suggest any kind of conspiracy theory. In my report on the FFII's criticsm of the proposed reform, that thinking is explained under the following subhead:
The theory of a "captive" court system
(contains a reference to what a justice of the SCOTUS said about the patent-specialized CAFC)
I pointed out that liberalization, which is what the EU is now mostly known for, was not the original number one priority.
I generally like the idea of a large European market and it's good if the EU opens up markets that its Member States are sometimes hesitant to liberalize/deregulate.
The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law.
What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn't heart a patent case) are definitely binding, especially if a part of the ruling is defined as a "Leitsatz" ("guiding ruling"). All lower courts -- which means all courts in the country except for the aforementioned constitutional court -- have to follow those decisions. That's something you didn't mention, and it's important in this case.
Just to avoid any misunderstanding, I certainly didn't mod your comments down.
You said they'll push again and again if a proposal fails the first or second time, and that is certainly a trait of EU politics. The "Constitution" got replaced by a "Reform Treaty", and that one had to be voted on twice in Ireland (but the second vote was still democratic, people still had the chance to vote against and many actually did, but not enough to scupper the proposal). While EU officials continue to claim that there are no plans to reintroduce a software patent directive (officially called "directive on the patentability of computer-implemented inventions"), they might achieve a similar net effect as one of the effects of the current "patent reform" proposal.
If you say that grassroots lobbying doesn't work in the EU, then I'd be curious to see a similar political body - in terms of size and state of economic development, only the US seems reasonably comparable -- where it works better (note that I mean this in relative -- not in absolute -- terms).
You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.
Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member States. Examples of non-EU EPC countries include (but are not limited to) Switzerland, Turkey, Norway, Monaco... but right now there's still the supremacy of EU law in the 27 EU Member States, while it's rather unclear to what extent EU law could still affect the reformed and united EU + non-EU patent and patent court system.
Where you're sort of right is that if the European Parliament wanted to block that whole reform altogether, it could theoretically do so. Since that reform is a system of five treaties, all of which are in a logical AND combination (any one fails, the whole package deal falls through), the Parliament could jettison the whole reform by just voting, for an example, against the EU law that would be needed to create a so-called Community patent, or by voting against the treaty establishing the United Patent Litigation System (for international treaties that the EU joins as a virtual country, the European Parliament's assent by a qualified majority of its members is required, so the Parliament could block by withholding that assent).
And that's exactly why the patent examiners' union wrote the letter to the European Parliament that gave rise to this slashdot story: they apparently hope that the European Parliament would use its powers to influence the content of the legislation.
My history might be off but I understood it that even back from the steel and coal union it was to unite through trade. Basically you can't easily change human nature but if war would send both countries into economic ruin they'd rather solve it peacefully
Your history isn't off but I can complement this:
Initially the key objective was indeed, in the wake of WW2, to prevent wars within Europe.
The idea of the founding fathers of the EU, such as Monnet and Schuman, was to start with economic integration and cooperation (coal and especially steel were obviously a good starting point to keep Germany peaceful) but always with the long-term vision of economic integration -- through the acceptance of a joint European governing body and framework -- being taken further and further over the decades and ultimately resulting in political union, in a United States of Europe.
Euroskeptics such as the UK Independence Party mention that original master plan of the "federalists" over and over, and it's true per se that this is what they wanted.
I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.
The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.
The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.
The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.
I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).
There's no question that the current setup, in which the European Patent Office only performs a unified examination of a patent application but doesn't really grant a single European patent, is suboptimal from the perspective of those taking out patents. It's also an inefficiency that patent litigation can currently only take place on a country-by-country basis (including invalidation, unless oppositions happens early enough so that the EPO itself could reject the patent application).
However, if an international construct such as the European patent system is made more efficient and powerful, then that increase in power and efficiency should be accompanied by an at least proportional increase in power of democratically elected lawmakers governing the same field of policy-making. That should be a governing principle regardless of whether hardware, software or other patents are at stake. The patent examiners' union raises that point and basically says that the exact opposite is happening from their point of view: more power and less control.
For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.
I listened to a European Commission official (the one who's considered the driving force behind the "patent reform" effort in question) as well as to Benjamin Henrion, the president of the FFII and submitter of this slashdot story, at a conference in Vienna, Austria, a week ago. On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism.
It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.
There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling". The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".
Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents.
The European Parliament may be decisive again
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EU Patent Wars to Resume
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· Score: 3, Informative
The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament: in the EPLA they have no influence
That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.
I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).
If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.
Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.
Software patents do exist in Europe. Tens of thousands of them, in fact. They have been, and continue to be, granted by the European Patent Office (EPO) as well as national patent offices (such as the UK Patent Office, for an example).
However, Microsoft, Oracle, SAP and the other usual suspects are unhappy about the fact that most of those European software patents are barely worth the paper their documents are printed on. All patent litigation in Europe goes to national courts. Even if there is an infringement of the same patent by the same infringer in multiple countries, the patent holder has to sue country by country. The national courts look at the applicable national law. So, what does that applicable law say as of now?
All countries that are member states of the European Patent Organization (the international organization that runs the EPO) have signed and ratified the European Patent Convention (EPC), a treaty that was worded in the 1970s. Its article 52 says that "computer programs" (and various other things) are not patentable inventions. But it also says that this exclusion only relates to the excluded subject-matter "as such".
The interpretation of "as such" varies greatly. The EPO believes that a computer program is only a "computer program as such" in the form of source code or object code, on which no one (not even in the US) would want a patent because its scope would be too narrow (for protecting code, copyright does the job anyway). But any concept that can be implemented by way of a computer program, such as a context menu, is considered a technical invention by the EPO.
It's like saying: Once the program actually runs on a computer, that whole computer along with the program running on it is no longer a "computer program as such" and the exclusion doesn't apply. That's the EPO position. It's also the way many national patent offices justify the grant of software patents. However, national courts with their independent judges often come to a different conclusion and throw those software patents out right at the beginning of an infringement litigation.
At this juncture, the real threat is not that the EU would introduce an EU community patent and change the legal framework. The clear and present danger is that the European Patent Litigation Agreement (EPLA) might be ratified. Microsoft, SAP and their usual allies (including the EPO itself) are pushing for this initiative now. That's the one to watch out for.
I agree with RMS on patents but disagree on DRM
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Linus on GPL3 In Forbes
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· Score: 4, Interesting
For a long time it seemed to me that a distinction between Free Software and Open Source was hair-splitting: the key open source programs were Free Software at the same time. Now there are two trends that suggest a distinction may be increasingly necssary:
Oracle et al. try to acquire open-source projects by buying up the companies behind them.
IBM and like-minded large players try to effectively control open source based on their huge patent portfolios. Companies like Nokia sometimes say it pretty directly that they believe patents enable them to potentially open-source some code while still retaining ownership.
Looking at those disconcerting trends, I very much support the GPL v3's approach to software patents. But when it comes to DRM, I think the FSF goes too far and addresses an issue for philosophical reasons that isn't worth it. DRM is a lot more legitimate per se than software patents are. Categorically opposing DRM may be perceived as downright anti-commercial by a number of people, and it's a move that I fear will only hurt the FSF and the GPL without changing anything about the fact that DRM is here to stay.
...relates to a representative democracy, which is how most Western democracies work, for the most part (there are exceptions like the cantons of Switzerland). Some of what you say refers to a referendum, and that would be direct democracy.
In a representative democracy, the elected representatives of the people should represent the interests of their electorate. On a specialized issue such as IP policy, that would include conclusions from the results of independent research as well as listening to a representative selection of the people affected by a measure, not just to the lobbyists of a few large corporations and the industry associations that they effectively control.
Just for some non-judgmental information, here's some information about the roles of those five companies in the legislative process on the EU software patent directive:
IBM: I was at a roundtable hosted by the German ministry of justice where IBM's Fritz Teufel was radically in favor of software patents. Toward the end of the legislative process, IBM distanced itself a little bit from Microsoft's position, at least to an extent that annoyed MSFT, but there's no indication whatsoever that they really were politically on the side of the FOSS community.
Sony: I never saw or heard of any Sony lobbying activity concerning the EU software patent directive. However, they're a corporate member of EICTA, an organization that pushed for software patents all the way.
Philips: Radically in favor of software patents, even threatened to kill all of its European jobs in software development unless software were patentable in Europe.
Novell: Didn't do anything meaningful against the EU software patent directive, only some vague criticism. Recently a Novell spokesperson was quoted in the Economist with a pro-swpat statement.
Red Hat: Supported my NoSoftwarePatents.com campaign and took various initiatives on its own, including that Red Hat spent money on advertisements in EU-specialized publications shortly before the decisive vote in the European Parliament. The fact that they're involved with this Open Invention Network is, potentially, a good sign despite the political track record of the others.
Over here in Europe, we've been anxiously watching for some time a tendency on the part of the US court system to declare itself competent to rule over things that happen pretty much anywwhere in the world. It's now almost like a divorce between a European couple can go before a US court if they spent their honeymoon on Hawaii ten years before, even if they had nothing to do with the US in the meantime. That was a slight exaggeration, but you get the idea.
Most people really underestimate the significance of this refusal of the US Supreme Court to hear MSFT's appeal. At this point it's not about Eolas or MSFT, it's about the fundamental question of whether a patent governs only a target market into which you sell or where a product/process is used (that's the way it used to be and should be) or also the originating market from which a technology is exported. With the logic behind that Eolas ruling, even a European software company (which SAP is in formal terms, although no longer practically) could be potentially sued now over the infringement of a US patent in Europe if it has some US-based operation that may have somehow been involved in the creation of the product.
The logic in patent law is that you can be sued for contributory infringement, such as for supplying a product (or a component of a product) to someone who then commits the infringement. However, the logic has so far been that the actual infringement, i.e. the one to which someone contributes by supplying a product or component, would be a question of applicable patent law in the location of such actual infringement. In this particular case, the actual infringements occur when people sell or use the MS Internet Explorer in Europe, and that should be a matter of European patent law. Otherwise the provision of a master disk to a subsidiary or vendor in territory B (target market) could already be governed under the patent law of territory A (originating market).
Note that 64% of the damage award to Eolas relates to overseas sales (roughly $300M out of $500M total), and obviously a major chunk of that is Europe. The EU has 460 million inhabitants and represents about 25% of the Gross Global Product.
The US has great stuff to export, but please keep your patent system where it is! We really don't want it.
It's quite simple: I would have stayed in the fight on a continuous basis if I had seen enough of a support from medium-sized companies to this cause. I had communicated some requirements, and those were primarily about a war chest that I considered necessary in order to influence the political process. Except for MySQL, I didn't get much support for that more ambitious plan, and then I decided that if others thought their time and money was better spent on something else, I'd do it the same way.
Claiming that I returned when we were on the winning track is the opposite of what happened. On June 20, the Legal Affairs Committee of the European Parliament voted on the software patent directive, and many essential amendments to the proposed bill (in order to exclude software from the scope of patentable subject matter) fell through. When the members of the committee voted at the end whether the parliament should accept or reject the bill (accepting meaning that it would still have gone back to the EU Council and possibly to conciliation), 16 voted for and only 10 against the proposal.
In that precarious situation, a group of companies actually did provide the kind of support that I became involved again for the last two weeks before the plenary vote. Like in almost all parliaments, it's the plenary that takes the actual decision, and the committee sort of prepares the plenary vote (in some parliaments, if the committee decides in a certain way, it's practically a done deal because people in the plenary just take the official party position, but in the European Parliament, the plenary may still decide differently).
I didn't position myself as the leader of our movement in the European Parliament at that stage. I took some initiatives and met various politicians and aides, and the FFII was really in charge.
Someone is not a "glory hog" because several independent juries nominate him for certain awards and honors. There's some information on those awards and honors toward the bottom of my backgrounder page on the NoSoftwarePatents.com site, and especially about how I personally view those nominations. I also explained that at great length in an email that the FFII sent out to all of its registered supporters.
U2 advertised this poll on the main page of its website last month, and so did various U2 fan sites. The publisher of the European Voice (the weekly newspaper that stands for the "EV" in "EV50") told me that there have been large-scale campaigns from the very first year of the EV50 awards (2001). It's perfectly legit, and we're going to win this thanks to the overwhelming support we've received from key people, large organzations, and major websites.
Slashdot Mirror
I agree that Nokia vs. Apple/Apple vs. Nokia isn't a Mexican standoff but that Nokia probably owns the far more fundamental mobile patents. However, the problem that Nokia has in this is that its most fundamental patents in the mobile space are part of GSM and other standards. That fact doesn't expropriate Nokia but at some point they could come under pressure that those are patents that should be made available on RAND (reasonable and non-discriminatory) terms. Then Nokia could argue that it is, in Nokia's view, not at all unreasonable to ask Apple for a cross-licensing deal because otherwise Apple could exclusively control some of the more recent technologies (multitouch etc.) while Nokia (and similar vendors) would be expected to grant licenses to their patents only because they're part of older standards definitions.
Apple faces the typical problem of a late entrant: even if you obtain some patents on new technologies, you still need the underlying old technologies and those patents are generaly still valid, given that patents expire only after 20 years (except for a failure to pay renewal fees, which won't happen if the patent holder is Nokia and the patents are valuable). That's why in an area of incremental innovations patents may not be even remotely as helpful to innovative late entrants as many people are led to believe.
In terms of waster pistol vs. aiming a cannon, I think this also applies to the Apple/HTC situation and HTC's announcement of yesterday that it's now (counter-)"suing" Apple.
The Wired article on mobile patent lawsuits was, quite apparently, written just before the latest front was opened: HTC yesterday announced that it is now "suing" Apple.
However, at a closer look it becomes clear that HTC didn't file a lawsuit in the traditional meaning of the word, which would mean that they take Apple to a court of law. It is only a complaint with the US International Trade Commission. By contrast, Apple (in March) sued HTC in an actual court of law plus lodged a complaint with the International Trade Commission. Only lodging a complaint is rather weak. Fortune/CNN lists the five patents in play and points out that it's only a complaint, not a suit filed with a court, and is not impressed.
On my FOSS Patents blog I comment on developments concerning patents and Free and Open Source Software, and I see the squabble over video codecs as a closely related issue. In both cases, Apple is on the side of the large patent holders and Google favors "open" alternatives. Android is a Google-backed project, and as I explained in a three-part sequence of blog posts on video codecs, Google so far backs Theora and it might now try to establish VP8, after open-sourcing it (which may happen very soon), as a codec standard. Apple, however, backs MPEG LA's H.264 (even though Apple is only a small contributor to the MPEG patent pool; for an example, Apple contributed only one patent out of 1,135 to the H.264 pool).
There's nothing more unpleasant for a proprietary/closed-source vendor to deal with than free/open-source competition. Patents then come into play and can tilt the scales in favor of entrenched proprietary/closed-source players. Sometimes it's sufficient for the major patent holders just to ensure that the "free" alternative won't be completely free, neither completely free as in free beer nor as in free speech. The use of patents against vendors of Android-based phones mobile phone operating software will probably result in increased prices and possibly also in reduced functionality of Android-based phones. The use of patents against open-source video codecs, which Steve Jobs said would happen but without providing any specifics, would have a similar effect for Theora and, possibly, VP8.
Hurga wrote:
Your question is right on. MP3 patents are pure software patents: compression algorithms and some of the patents don't even define a particular compression algorithm but just methods for how to organize compression (such as an iterative approach: compressing with increasing lossiness factors until the result fits into an allotted amount of memory.
In a software-patent-free world, MP3 would not be patentable either. However, substantive patent law is a complex and tricky field and differences can be subtle, resulting in one patent being upheld by a court and a seemingly similar one being thrown out. Sometimes the difference is just in how the patent application is worded. Some attorneys do a better job of presenting their patents as "technical inventions" than others.
Elektroschock wrote:
The FFII generally referred to them, as I wrote on my blog, as "the patent movement", meaning national government officials whose careers are tightly linked to the patent system.
All of that is right "per se" ;-) but let me clarify that the European Parliament's amendments wouldn't have resulted directly in a new law. The Parliament's amended bill would have gone back to the EU Council. In that one, the proponents of software patents had approximately 70% of the votes, and roughly 30% were needed to block a proposal. So the Council's qualified majority in favor of software patents was in doubt at the time (we, the opponents of the proposal, actually believed that we had a blocking minority in place at the relevant time), but they still had more than twice as many votes in the pro-software-patent camp as the number they would have needed to block a proposal they wouldn't have liked. What the pro-software-patent camp feared, however, was that a heavily amended bill going back from the Parliament to the Council could hav resulted in a compromise unfavorable to their interests (which is exactly what we feared as well from our point of view, and that's how rejection was brought about).
I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.
Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which is why I would say the answer to your question is 99.99% No, if not higher than that. And there certainly isn't a direct appeal mechanism in place.
Elektroschock wrote:
I don't think the staff union of the European Patent Office or the FFII wanted to suggest any kind of conspiracy theory. In my report on the FFII's criticsm of the proposed reform, that thinking is explained under the following subhead:
The theory of a "captive" court system
(contains a reference to what a justice of the SCOTUS said about the patent-specialized CAFC)
I pointed out that liberalization, which is what the EU is now mostly known for, was not the original number one priority.
I generally like the idea of a large European market and it's good if the EU opens up markets that its Member States are sometimes hesitant to liberalize/deregulate.
What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn't heart a patent case) are definitely binding, especially if a part of the ruling is defined as a "Leitsatz" ("guiding ruling"). All lower courts -- which means all courts in the country except for the aforementioned constitutional court -- have to follow those decisions. That's something you didn't mention, and it's important in this case.
Just to avoid any misunderstanding, I certainly didn't mod your comments down.
You said they'll push again and again if a proposal fails the first or second time, and that is certainly a trait of EU politics. The "Constitution" got replaced by a "Reform Treaty", and that one had to be voted on twice in Ireland (but the second vote was still democratic, people still had the chance to vote against and many actually did, but not enough to scupper the proposal). While EU officials continue to claim that there are no plans to reintroduce a software patent directive (officially called "directive on the patentability of computer-implemented inventions"), they might achieve a similar net effect as one of the effects of the current "patent reform" proposal.
If you say that grassroots lobbying doesn't work in the EU, then I'd be curious to see a similar political body - in terms of size and state of economic development, only the US seems reasonably comparable -- where it works better (note that I mean this in relative -- not in absolute -- terms).
You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.
Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member States. Examples of non-EU EPC countries include (but are not limited to) Switzerland, Turkey, Norway, Monaco... but right now there's still the supremacy of EU law in the 27 EU Member States, while it's rather unclear to what extent EU law could still affect the reformed and united EU + non-EU patent and patent court system.
Where you're sort of right is that if the European Parliament wanted to block that whole reform altogether, it could theoretically do so. Since that reform is a system of five treaties, all of which are in a logical AND combination (any one fails, the whole package deal falls through), the Parliament could jettison the whole reform by just voting, for an example, against the EU law that would be needed to create a so-called Community patent, or by voting against the treaty establishing the United Patent Litigation System (for international treaties that the EU joins as a virtual country, the European Parliament's assent by a qualified majority of its members is required, so the Parliament could block by withholding that assent).
And that's exactly why the patent examiners' union wrote the letter to the European Parliament that gave rise to this slashdot story: they apparently hope that the European Parliament would use its powers to influence the content of the legislation.
Your history isn't off but I can complement this:
Initially the key objective was indeed, in the wake of WW2, to prevent wars within Europe.
The idea of the founding fathers of the EU, such as Monnet and Schuman, was to start with economic integration and cooperation (coal and especially steel were obviously a good starting point to keep Germany peaceful) but always with the long-term vision of economic integration -- through the acceptance of a joint European governing body and framework -- being taken further and further over the decades and ultimately resulting in political union, in a United States of Europe.
Euroskeptics such as the UK Independence Party mention that original master plan of the "federalists" over and over, and it's true per se that this is what they wanted.
I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.
The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.
The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.
The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.
I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).
There's no question that the current setup, in which the European Patent Office only performs a unified examination of a patent application but doesn't really grant a single European patent, is suboptimal from the perspective of those taking out patents. It's also an inefficiency that patent litigation can currently only take place on a country-by-country basis (including invalidation, unless oppositions happens early enough so that the EPO itself could reject the patent application).
However, if an international construct such as the European patent system is made more efficient and powerful, then that increase in power and efficiency should be accompanied by an at least proportional increase in power of democratically elected lawmakers governing the same field of policy-making. That should be a governing principle regardless of whether hardware, software or other patents are at stake. The patent examiners' union raises that point and basically says that the exact opposite is happening from their point of view: more power and less control.
For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.
It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.
There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling". The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".
Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents.
The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence
That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.
I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).
If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.
Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.
Software patents do exist in Europe. Tens of thousands of them, in fact. They have been, and continue to be, granted by the European Patent Office (EPO) as well as national patent offices (such as the UK Patent Office, for an example).
However, Microsoft, Oracle, SAP and the other usual suspects are unhappy about the fact that most of those European software patents are barely worth the paper their documents are printed on. All patent litigation in Europe goes to national courts. Even if there is an infringement of the same patent by the same infringer in multiple countries, the patent holder has to sue country by country. The national courts look at the applicable national law. So, what does that applicable law say as of now?
All countries that are member states of the European Patent Organization (the international organization that runs the EPO) have signed and ratified the European Patent Convention (EPC), a treaty that was worded in the 1970s. Its article 52 says that "computer programs" (and various other things) are not patentable inventions. But it also says that this exclusion only relates to the excluded subject-matter "as such".
The interpretation of "as such" varies greatly. The EPO believes that a computer program is only a "computer program as such" in the form of source code or object code, on which no one (not even in the US) would want a patent because its scope would be too narrow (for protecting code, copyright does the job anyway). But any concept that can be implemented by way of a computer program, such as a context menu, is considered a technical invention by the EPO.
It's like saying: Once the program actually runs on a computer, that whole computer along with the program running on it is no longer a "computer program as such" and the exclusion doesn't apply. That's the EPO position. It's also the way many national patent offices justify the grant of software patents. However, national courts with their independent judges often come to a different conclusion and throw those software patents out right at the beginning of an infringement litigation.
At this juncture, the real threat is not that the EU would introduce an EU community patent and change the legal framework. The clear and present danger is that the European Patent Litigation Agreement (EPLA) might be ratified. Microsoft, SAP and their usual allies (including the EPO itself) are pushing for this initiative now. That's the one to watch out for.
Looking at those disconcerting trends, I very much support the GPL v3's approach to software patents. But when it comes to DRM, I think the FSF goes too far and addresses an issue for philosophical reasons that isn't worth it. DRM is a lot more legitimate per se than software patents are. Categorically opposing DRM may be perceived as downright anti-commercial by a number of people, and it's a move that I fear will only hurt the FSF and the GPL without changing anything about the fact that DRM is here to stay.
In a representative democracy, the elected representatives of the people should represent the interests of their electorate. On a specialized issue such as IP policy, that would include conclusions from the results of independent research as well as listening to a representative selection of the people affected by a measure, not just to the lobbyists of a few large corporations and the industry associations that they effectively control.
IBM: I was at a roundtable hosted by the German ministry of justice where IBM's Fritz Teufel was radically in favor of software patents. Toward the end of the legislative process, IBM distanced itself a little bit from Microsoft's position, at least to an extent that annoyed MSFT, but there's no indication whatsoever that they really were politically on the side of the FOSS community.
Sony: I never saw or heard of any Sony lobbying activity concerning the EU software patent directive. However, they're a corporate member of EICTA, an organization that pushed for software patents all the way.
Philips: Radically in favor of software patents, even threatened to kill all of its European jobs in software development unless software were patentable in Europe.
Novell: Didn't do anything meaningful against the EU software patent directive, only some vague criticism. Recently a Novell spokesperson was quoted in the Economist with a pro-swpat statement.
Red Hat: Supported my NoSoftwarePatents.com campaign and took various initiatives on its own, including that Red Hat spent money on advertisements in EU-specialized publications shortly before the decisive vote in the European Parliament. The fact that they're involved with this Open Invention Network is, potentially, a good sign despite the political track record of the others.
Most people really underestimate the significance of this refusal of the US Supreme Court to hear MSFT's appeal. At this point it's not about Eolas or MSFT, it's about the fundamental question of whether a patent governs only a target market into which you sell or where a product/process is used (that's the way it used to be and should be) or also the originating market from which a technology is exported. With the logic behind that Eolas ruling, even a European software company (which SAP is in formal terms, although no longer practically) could be potentially sued now over the infringement of a US patent in Europe if it has some US-based operation that may have somehow been involved in the creation of the product.
The logic in patent law is that you can be sued for contributory infringement, such as for supplying a product (or a component of a product) to someone who then commits the infringement. However, the logic has so far been that the actual infringement, i.e. the one to which someone contributes by supplying a product or component, would be a question of applicable patent law in the location of such actual infringement. In this particular case, the actual infringements occur when people sell or use the MS Internet Explorer in Europe, and that should be a matter of European patent law. Otherwise the provision of a master disk to a subsidiary or vendor in territory B (target market) could already be governed under the patent law of territory A (originating market).
Note that 64% of the damage award to Eolas relates to overseas sales (roughly $300M out of $500M total), and obviously a major chunk of that is Europe. The EU has 460 million inhabitants and represents about 25% of the Gross Global Product.
The US has great stuff to export, but please keep your patent system where it is! We really don't want it.
Claiming that I returned when we were on the winning track is the opposite of what happened. On June 20, the Legal Affairs Committee of the European Parliament voted on the software patent directive, and many essential amendments to the proposed bill (in order to exclude software from the scope of patentable subject matter) fell through. When the members of the committee voted at the end whether the parliament should accept or reject the bill (accepting meaning that it would still have gone back to the EU Council and possibly to conciliation), 16 voted for and only 10 against the proposal.
In that precarious situation, a group of companies actually did provide the kind of support that I became involved again for the last two weeks before the plenary vote. Like in almost all parliaments, it's the plenary that takes the actual decision, and the committee sort of prepares the plenary vote (in some parliaments, if the committee decides in a certain way, it's practically a done deal because people in the plenary just take the official party position, but in the European Parliament, the plenary may still decide differently).
I didn't position myself as the leader of our movement in the European Parliament at that stage. I took some initiatives and met various politicians and aides, and the FFII was really in charge.
Someone is not a "glory hog" because several independent juries nominate him for certain awards and honors. There's some information on those awards and honors toward the bottom of my backgrounder page on the NoSoftwarePatents.com site, and especially about how I personally view those nominations. I also explained that at great length in an email that the FFII sent out to all of its registered supporters.
http://yro.slashdot.org/comments.pl?sid=166861&cid =13915288
U2 advertised this poll on the main page of its website last month, and so did various U2 fan sites. The publisher of the European Voice (the weekly newspaper that stands for the "EV" in "EV50") told me that there have been large-scale campaigns from the very first year of the EV50 awards (2001). It's perfectly legit, and we're going to win this thanks to the overwhelming support we've received from key people, large organzations, and major websites.