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Bye, bye, Internet

On May 18th, 2004 the European Council of Ministers approved a new guideline favoring, for the first time, a policy toward software patenting in the European Union. The guideline still requires approval by the European Parliament which will be reelected in June. The parliament is expected to rubber stamp the Council's proposal.

Patents on “computer implemented inventions”, aka software patents are very popular among big American companies such as IBM and Microsoft. By seeking patents on hitherto unprotected Internet innovations of known or unknown open source origins, big companies can build up a cheap legal armory which in future will permit them to extract royalties from smaller companies and individuals who are (a) possibly unaware of the patent and (b) would not even be economically able to seek patenting for their own future inventions. In practice, a big company could patent an individual inventor's innovation and then force him to pay royalties or abandon further development work. Any individual creating his or her own homepage could be sued for patent infringement because one or the other popular software tool has perhaps secretly been patented by some big company for which the cost of an additional patent is peanuts.

Software patents threaten the survival of the Internet as we know it. They menace and potentially punish millions of idealistic software developers whose creativity and collaboration made the Internet a huge success, a global communication tool and a source of rapidly increasing productivity in modern industrial economies. The basic democracy of the internet in which individuals, small and big companies enjoy the same freedom of creativity will disappear once the big players start using their patent armories on a global scale.

Patenting of open source software by big companies resembles biopatenting by agro-multinationals and pharmaceutical companies of indigenous plants, traditional farm and forest plant varieties and other useful organisms in developing countries. The idea is to use the patented variety or organism for the company's own research & development program, and eventually to sell it back to the country or region of origin where it had been in free use for centuries and perhaps millennia.

The originators of agricultural innovations in developing countries were many generations of farmers who gradually improved crops and farm animals. In order to prevent misappropriation and theft of valuable developing country germplasm by multinationals, the Food and Agriculture Organization of the United Nations (FAO) and the Consultative Group on International Agricultural Research (CGIAR) jointly developed the concept of informal innovation in germplasm improvement as an Intellectual Property Right (IPR) jointly held by the informal innovators (or rather their descendants, i.e. the current generation of farmers). This new and of course controversial IPR shall serve as the legal basis for future patenting and profit sharing between (the farmers of) the country or region of the germplasm's origin, and the transnational company seeking its commercial exploitation.

Current enthusiasm for software patenting is mainly limited to America. Europe is generally more cautious although the European Patent Office has been increasingly generous in awarding such patents. The lobby of the software multinationals has recently been busy getting in by Europe's back door. Ireland, well known as the world's leading software producer thanks to massive overseas investment, has chaired a small committee—allegedly strongly influenced by lobbyists—of the European Council which submitted a new patent-friendly draft guideline to the European Parliament for adoption.

This guideline aims at superseding article 32 of the European Patent Agreement which explicitly excludes software from patent protection.

If, however, the multinationals prevail and software patenting becomes commonplace, the open source community should seek an Informal Innovators IPR analogous to the biopatent sector. Software companies should be forced to split their royalties with the community of informal innovators through an Open Source Innovation Register to be located at the World Intellectual Property Organization (WIPO) in Geneva. All informal innovators should then be encouraged to register their innovations in simple terms with WIPO and thus become eligible for a share of the royalties.

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—— Carlo & Heinrich von Loesch