The EPLA Shuffle

The EPLA Shuffle


In early 2006, the European Commission began talking about a "final attempt" to fix the European patent system.

We heard the standard concerns about Europe's innovation gap. "How can we catch up with the Americans?" "How can we prevent the Chinese invasion?" "We need a better system of intellectual property rights." "We need stronger protection for rights holders." These noises came out of the Commission, in meetings, and speeches; we heard echoes from large software companies and the industry clubs they sponsor. SAP, in particular, began calling very loudly for a cheaper, stronger patent system.

And the focus of all these noises has been "EPLA" (the European Patent Litigation Agreement), a new system designed to make it easier to enforce patents. EPLA is not, superficially, about software patents at all. But dig deeper, and it's exactly that: a third major attempt to introduce software patents, by removing all remaining regulation of the patent industry.

Very briefly, EPLA is a treaty between the existing countries who signed the European Patent Convention, possibly with the EU also joining. It is not an EU institution. EPLA would create a new single patent court. This would define and interpret patent law. EPLA judges would be appointed by the same group that runs the EPO. EPLA judges would implement the EPO vision of the patent system and EPLA would kill off all control from national courts. No oversight from parliaments, no right of appeal to higher courts.

The Commission (which is acting for the patent industry) has learned from the beating it took last year, when it tried and failed to get software patents legitimised in the European Parliament. The EPLA campaign is more subtle. It is based on two things. First, a well-designed propaganda piece, and second a wide astroturfing campaign to promote that propaganda.

In this article I'm going to dissect that propaganda piece, then examine the pro-EPLA astroturfing campaign. Lastly, I'll explain what the FFII is doing to fight back.

The propaganda piece

The Commission's propaganda is a clever mix of truth and lies, formulated by experts, and you will find it repeated in part, or in whole, in almost every discussion of the patent system by the Commission, by patent lawyers, or by the EPO. It is this:

  1. Europe needs innovation.
  2. To promote innovation, inventors and creators need protection for their investment.
  3. Protection means a patent system that delivers cheap, high-quality patents that can be cheaply and reliably defended in court.
  4. The current patent system is incoherent and does not do any of the above, since it pits the European Patent Office against national courts, who have different interpretations of patent law.
  5. The long-term solution is a community patent, i.e. a patent defined by the European Union.
  6. A good interim solution is the ratification of the London Agreement, and the setting up of a European Patent Court under the terms of the draft European Patent Litigation Agreement.

It sounds convincing, doesn't it? Sadly, or luckily, we at the FFII are total and utter cynics when it comes to anything the Commission says, and when you give us neat explanations that end with "and they all lived happily ever after", we are reminded of the Las Vegas proverb: "Every game has a patsy, and if you don't know who it is, chances are it's you."

Always start a big lie with a small truth

And in this game, the patsy is the European IT sector, and everyone who depends on it. That's all of us. So let me break down the lie and show you where you were fooled:

  1. Europe needs innovation.

This is like saying, "a human body needs air". It's always good to start a lie with a solid truth; it puts your audience at ease. Yes, indeed, Europe needs innovation. Excellent!

  1. To promote innovation, inventors and creators need protection for their investment.

Here it starts. Is all innovation driven purely by direct monetary interest? That seems inaccurate. Much innovation is done simply as part of academic competition. Industry innovation is always part of a process that delivers results down the line - in better products, in happier customers, in stronger skills. Often the cost of innovation is trivial compared to the down-the-line costs. Why would protecting that trivial investment have any benefit at all?

Second, watch the language. "Invent" and "create" are key terms that slip in slyly but are used to lever worlds. The first refers to doing anything that is patentable. The second to doing things that are copyrightable. So if you think you're inventing when you write music, wrong! You're creating. Similarly, calling software a "computer implemented invention" is like saying, "software-as-a-patentable-thing". Billions of Euro have been won and lost over such delicate matters as the meaning of a single word.

Third, watch as the author of the lie makes the incredible claim of being able to promote innovation. This is self-flattery from governments, deceit from the patent industry. In twenty-five years of making software, I've seen many, many attempts by big governments to "promote innovation", and they all end in big bills for the tax payer, and little else. Europe has had half-a-dozen "framework programmes" that distributed billions to universities and researchers. The result is a generation of people who are very skilled at requesting framework programme money. Japan had its "fifth-generation computer" project, which probably delayed Japanese IT by five to ten years. The US has had the Bayh-Dole act, which has turned universities into patent-troll incubators and burned-up America's lead in pharma and biotech in a bonfire of litigation.

The list is endless, but basically comes down to this: large governments for the most part don't understand or care that innovation is a natural phenomenon that happens when you let clever people loose in a truly competitve market. Government does not need to promote innovation. Government just needs to define clear and obvious rules of conduct, set itself up as a fair police and judge, and then get out of the way.

The propaganda continues with a sleight-of-hand that fools all but the experts. But it's a cheap trick, once you see how they do it:

  1. Protection means a patent system that delivers cheap, high-quality patents that can be cheaply and reliably defended in court.

What happened to copyrights, trademarks, trade secrets? There are many, many more (perhaps millions of times more) works of software that are copyrighted than are protected by patents. But because copyright is automatic, unregistered, free, and almost never disputed, it's not worth anything to patent lawyers and politicians looking for an easy metric for "innovation".

So we've gone from a truth to a half-truth. We can accept as a working theory that a better patent system with high-quality patents can, in theory, promote innovation. There are, however, no studies that actually prove this. And certainly no basis for trying to expand the patent system at the cost of existing, working property rights.

Let's look at the follow-up: "...patents that can be cheaply and reliably defended in court."

What happened to "patents that can be cheaply invalidated?" A majority of patent claims are bogus, but the patent offices put the onus of invalidation on society. We have to go to court to invalidate bad patents because the patent offices are so bad at weeding these out and it is difficult and expensive to attack patents at any stage of their life-cycle.

So we've lost copyright and trademarks in the discussion, even though these are far more used and far more useful than patents (we can prove easily that copyrights and trademarks have promoted innovation in many sectors).

Worse, we've lost the right to ignore bad patents and do business as normal. To solve the problem of bad patents, we make them easier to enforce. That's like saying, to solve the problem of car jackings, we allow criminals to carry guns. Suddenly in the name of innovation, we take away the rights of the mass of business people, and give special new powers to a minority. It is probably not a surprise that this minority are mostly patent experts.

  1. The current patent system is incoherent and does not do any of the above [since it pits the European Patent Office against national courts, who have different interpretations of patent law].

Yes, the current patent system is incoherent, but not because it fails on the above criteria, which are bogus. The current patent system is incoherent because the EPO has decided to become activist and grant patents that should not be allowed. There is a clear problem - the EPO - but criticism of the EPO totally missing from the Commission's propaganda. Which is only normal, since the EPO and its friends wrote most of it.

  1. The long-term solution is a community patent, i.e. a patent defined by the European Union.

This is probably accurate. A dose of truth helps to calm the reader, helps calm the growing doubts. But the triple knock-out blow is coming.

  1. A good interim solution is the ratification of the London Agreement, and the setting up of a European Patent Court under the terms of the draft European Patent Litigation Agreement.

This is a favourite trick of the pro-EPLA crew: make obscure, complex, and obfusticated references that you know people will be unable to argue with. If your public seems to be wavering, throw in some references to a random draft treaty. Let me take this sentence apart.

First, EPLA is not "interim", it's very long term. There is no mechanism or road map for changing or dissolving it. Once EPLA is in place, it would take agreement from all members of the European Patent Convention (including non-EU countries like Switzerland) to change anything.

Second, the London Agreement is about languages, and it's designed to save money for the large firms that patent across all Europe. But despite the Commission's dreams, Europe still consists of many countries and most business is local. Translation of all documents into English, French, or German would make patent litigation disastrously expensive for firms in other countries.

Last, how about that European Patent Court? Sounds fine, yes? Ah, until you read the fine print of EPLA. Guess who would appoint the judges? The EPO. For two years. Goodbye judicial independence. Would the EPC be supervised by a higher court? Forget it. The EPC would answer to no-one. Well, perhaps the European Parliament could intervene if there were problems? No - the EPC is not an EU institution.

Meanwhile, the simple and obvious reform - tell the EPO to stop issuing illegal software and business software patents - is ignored. And it'll continue to be ignored until the US Congress bans software patents, which I predict it will do within five to ten years. The question is whether the Commission will have succeeded forcing EPLA on us by then, or not.

Astroturfing

Next, let me explain how the Commission is pushing its pro-EPLA message. It's using an astroturfing technique that has been fine-tuned by lobbyists. Imagine you're a big firm and have invented a new, useless, and probably poisonous product no-one wants, say a medicine that makes people turn bright blue. You start by creating a fake disease. Call it "Affected Skin Decoloration Syndrome". You pay some researchers to conduct studies showing that some aspect of modern living - say, neon lights, or flush toilets - cause excessively pale skin, and that a healthy dose of Turns'U'Blu is an excellent cure. You create a "platform", a lobby group that masquerades as a citizen's group, to clamour for free Turns'U'Blu for all school children and office workers. You find studies that prove that blue skin is resistant to cancer. Eventually, bending to the massive weight of popular opinion, the regulators permit your product and you make great sales.

This is what the Commission is doing for EPLA.

We got:

  • Comments from Commissioner McCreevy in several meetings about the need to fix the patent system.
  • A consultation on "furture patent policy" where a majority of responses asked for EPLA (how the Commission managed to ignore the huge response from the IT sector and stuff the results with hand-picked submissions is a story in itself).
  • Commission Studies on innovation that quoted the propaganda piece almost wholesale.
  • An Commission-run ICT task force that wrote reports asking for EPLA (how the patent trolls took over the task force workgroups is also a story worth writing).
  • A pro-EPLA motion in parliament that repeated the propaganda piece. This motion was launched by MEPs who just happen to make money from patents, and was demolished by the FFII and the saner parts of the European Parliament.

And we expect in December to get a formal announcement from McCreevy about the Commission's plans for EPLA.

Fighting back

Lastly, let me explain what the FFII is doing about this.

Obviously, we have fought, and continue to fight, the pro-EPLA propaganda, with analysis, comment, and action. We work with the European Parliament to ensure they understand what is at stake. Very few MEPs really understand EPLA, so occasions such as the EPLA motion are very useful. We build websites of information. We write briefs, we speak to journalists.

But simply reacting is not enough.

We want a working system of intellectual property rights that uses the right model for each form of work. For industrial products, patents. For software, music, writing, copyright. For names and logos that represent goodwill, trademark. For knowledge, trade secrets. These rights must be balanced so that all parties - not just patent holders - are fairly treated.

The current patent "reform" trends being pushed by the European Patent Office and the EU Commission are not healthy. They are unbalancing the system of IP rights, and creating severe tensions in several industries, including software, pharmaceutics, and telecoms. The voices of the patent industry and their friends in the Commission are not representative, not neutral.

So the FFII is launching a new movement, called the European Patent Conference. This will be a movement to construct a new and better patent system. We will organise support from all sectors, and from all industries that are affected by patents. We will look at the problem of software patents but we will also look at junk patents of all kinds. Most importantly we will be focusing a bright light on the patent industry itself, who regulates it, and who profits from it.

Conclusion

EPLA is a flawed and corrupt initiative that solves the problem of under-regulation by removing all remaining regulation. The idea of a single top patent court, run by an unregulated for-profit patent industry, scares even the most pro-patent industry specialists. The only winners will be the patent lawyers, which is why people are calling this "Europe Pays the Lawyers Again". Let's hope that's not the case.

Reprinted

This was the last article in a three-part series on software patents, extracted from my blog.

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Biography

Pieter Hintjens is the CEO of iMatix Corporation, and the author of numerous free software tools published by iMatix. He wrote his first GPLed software (Libero) in 1992. He was the main author of the AMQP messaging protocol specification, and iMatix's OpenAMQ messaging software handles around 1bn messages a day for a large bank. He is the past president of the FFII, an association which has fought software patents and defended open standards and competition since 1999. In 2007 he founded the Digital Standards Organization.