Open source prepares to kiss EU patent ass goodbye

By Kieren McCarthy

There’s going to be a vote in the European Parliament on 1 September (originally today, Monday 30 June 2003) that will have enormous implications on the worldwide software market.

The vote will be on whether to adopt a report by its Legal Affairs and Internal Market Committee that recommends the rules on patenting of software be relaxed in line with existing laws in the US and Japan.

It looks as though, despite widespread and deep criticism, the report will be adopted. And this will probably mean a shift of power from small software companies and the open source community to large multi-national corporations.

With patents allowed, small software companies may suddenly find themselves faced with accusations of patent infringement from IBM, Microsoft, HP, Sun etc etc. They can agree to pay a licence and see their profits slashed or go to court and spent on average £300,000 fighting the case.

The situation for Linux looks even worse. The recent trademark infringement claim by SCO against Linux has already created turmoil. The fear is that with patent law allowed, the floodgates would be opened and Linux distributors swamped and bankrupted by court claims – with Microsoft leading the charge.

Sadly, though, those who are most against the law change have only themselves to blame if it goes through – thanks to their failure to understand on a very human level how the world works and in particular how politicians work.

It is politicians who make the law, and it is politicians who need to be persuaded if the law is to move in the direction that you desire it to. But while they are a peculiar and varied breed, there are three things you can be fairly certain will not hold much sway with them:

Ideological argument. Politicians are nothing if not pragmatic. Their very survival is based on seeing which way the wind is blowing and adjusting accordingly

Little-man defence. Politicians will not risk upsetting rich and powerful people and companies unless there is a principle at stake: that principle being that the government ultimately decides. Therefore arguing a point on the basis that it will restrict or impair a powerful body is counterproductive

Criticism. Politicians do not respond well to criticism. In fact, the more they get, the more stubborn they become. Flattery is the surest route to their heart, and this means making them feel important. Wining and dining, listening, applauding their insight and then putting your point across

Unfortunately, every coherent and persuasive argument (and there are many) made by those opposing this change in patent law fits squarely into one of the three categories above and that is why the patent laws of the EU are set to change on Monday.

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