Brussels, 04 July 2008 — Amendments to the European Telecommunications directive being rushed through the European Parliament propose a "Soviet internet" where software publishers and internet service providers watch traffic and data for Hollywood. Software and services that run on the internet would have to ask for permission of the regulators.

Some amendments to the European Telecommunications directive propose allowing administrative authorities in each Member State to define which are the authorised software applications for the internet. Parts of the directive should be implemented by the member states through requiring specific "technical features" in electronic communications networks. Live-analysis and filtering compose a pre-requisite for a "Soviet style" censorship environment.

Several committees suggested massive changes to an over complex Commission proposal. The committee process was hijacked by vested interests. All amendments of at times questionable quality lack a legal impact analysis and sufficient examination. Immature propositions risk to create an administrative burden and stifle internet innovation. Overloaded and confused by hundreds of amendments the lobby sets MEPs under pressure to agree on a poor compromise before the summer break. All amendments need more thoughtful review so that a mature text may be presented to the plenary and MEPs fully understand what they cast their vote on in the committee.

Benjamin Henrion, FFII representative in Brussels, rings the alarm bell: "Tomorrow, popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority. This is compromising the whole open development of the internet as we know it today. Once the Soviet Union required the registration of all typewriters and printing devices with the authorities."

Privacy expert Ricardo Cristof Remmert-Fontes comments: "In Germany Deutsche Telekom is under fierce criticism for alleged spying on citizens and journalists. In Europe the amendments want to make spying a natural obligation for communications providers. The planned infrastructure of live-analysis and filtering can be used for mass-surveillance and censorship."

FFII President Alberto Barrionuevo adds: "The agenda to establish a Chinese internet wall in Europe is set by few ultra-copyright lobbyists. I don't agree to justify their intentions to spy us with the protection of copyright. It sets a precedent for market control: regulating large parts of internet communication, provider contracts, software development and thus internet businesses. The proposed environment is threatening all European businesses which need protection from business espionage, and be able to use secure virtual private networks (VPNs) over the internet."

The FFII therefore asks the Members of the European Parliament to take more time and reconsider thoughtfully the Telecommunications proposal as prepared for voting. Over 300 amendments and fundamental concerns on different issues, such as free speech, censorship, net neutrality and trade secrets should be reviewed with greater care. The debate on the European Telecommunications directives requires more reflection, if it should lead to a reliable and solid legal base.

Background Information

An Article 2 Compromis Amendment that changes Directive 2002/58/EC Article 14 says on paragraph 2:

"Where provisions of this Directive can be implemented only by requiring specific technical features in electronic communications networks, Member States shall inform the Commission in accordance with the procedure provided for by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services."

Links

• ITRE-IMCO compromise amendments: http://www.laquadrature.net/files/amendements-compromis_ITRE-IMCO_7juil/
• Permanent link to this press release: http://press.ffii.org/Press_releases/european-parliament-rushes-towards-soviet-internet

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

"JURI had well-versed experts on European patent matters on board who voiced interesting ideas about how to move the system forward. “We need to be legally creative” quickly became the catchphrase of the day when the discussion focussed on the question of possibilities of tying the EPO system to the Community legal order. The committee members also made it clear what they understood by “democratic control” of the EPO – a concept which, in recent years, had caused some headaches in our organisation, as it was used frequently in the context of resolutions concerning the patenting practice of the EPO in areas such as computer-implemented inventions and biotechnology: ensuring that the decisions of the EPO are subject to review by an independent judiciary. Some MEPs repeatedly asked the question whether the Alicante model of the OHIM could also apply to the EPO – a proposal which led to an in-depth discussion on legal issues and finally to a clarification of the differences in the institutional embedding of both offices."

One MEP highlighted that the EPO is in fact the legislator:

But the MEPs also reminded their hosts of how the decisions taken by the EPO’s instances are seen from an external perspective: “Although you are a technical body, you are taking political decisions”, Medina Ortega maintained.

Medina also highlighted that they were not coming to control them:

At the beginning of the meeting, the MEPs allayed potential fears that the EPO may see itself confronted with uncomfortable discussions about its institutional status or patenting practice in disputed areas of technology: “We have not come here to control you, as it were”, Manuel Medina Ortega (Socialists, ES), Vice-President of the Parliament from 1986 to 1987. “We have come here to learn and to understand how the EPO is functioning and how the Office views the pending initiatives.”

Patents. Microsoft has patents that may cover your implementations of the formats. Neither this notice nor Microsoft's delivery of the documentation grants any licenses under those or any other Microsoft patents. However, the formats may be covered by Microsoft's Open Specification Promise (available here: http://www.microsoft.com/interop/osp). If you would prefer a written license, or if the formats are not covered by the OSP, patent licenses are available by contacting moc.tfosorcim|glpi#moc.tfosorcim|glpi.

Mr Gentry is speaking this week at the expensive conference IPBusinessCongress in Amsterdam, which is gathering many members of the patent community:

15:20 - 16:20
St John’s Room II

New opportunities for patent owners in Europe
• The London Agreement, the Community patent, a single patent litigation system
• An evolving market for patent rights
• The political dimension - patents under pressure
Moderator: Joff Wild (UK), Editor, IAM magazine
Speakers:
Mike Barlow (UK), Head, Global Patents and Technology Law, BP plc
Severin de Wit (Netherlands), Managing consultant, IPEG Consultancy
Simon Gentry (UK), Director, Campbell Gentry

Note that the moderator Joff Wild has already said that the central court could bring the codification of software patents by the backdoor:

The current situation shows why such talks are necessary – a central European patent court will help bring the certainty that, in a number of areas such as software and biotechnology, we currently do not have.

— Joff Wild, Intellectual Asset Management Magazine

Remember for whom Simon Gentry was working before:

And for whom he was working after:

Software patents are getting back through the back door, as EICTA and BSA predicted the monday before the vote on the software patent directive, arguing on the phone with several EPP MEPs to push for rejection, and push for a central court instead.

(iv) Open Standards

121. Among technology standards, there is particular interest for “open standards”. While there is no universally accepted definition of that term, all open standards have the following common characteristics: (i) the specification is publicly available without cost or for a reasonable fee to any interested party; (ii) any IP rights necessary to implement the standard are available to all implementers on RAND terms, either with or without payment of a reasonable royalty or fee; and (iii) the specification should be in sufficient detail to enable a complete understanding of its scope and purpose and to enable competing implementations by multiple vendors. Some define open standards as publicly available technical specifications that have been established in a voluntary, consensus-driven, transparent and open process, others appear to add to this definition the requirement that an open standard has to be available royalty-free. The defenders of the first definition favor patent policies on a RAND basis, which they believe to maximize flexibility through a commitment to license combined with the right of patent holders to receive reasonable and adequate compensation for their sharing of their technology, and trust in the co-existence of this model and a royalty-free model. They also question how, in a royalty-free environment, investments in research and development could be maintained in the long run and how a broad participation in standard-setting processes could be maintained. On the other hand, the advocates of the latter approach are convinced that society as a whole would benefit from the open and royalty-free access to standards, as it is the case, for example, in the Internet context, which had been established precisely in order to allow the free publication and retrieval of information from the web. According to them, this model would best ensure interoperability, greater innovation and consumer welfare. In addition, they argue that, even where a royalty-free policy is adopted, the benefit of standardization may outweigh the loss of royalty income in certain technologies, simply through greater quantities of a certain product being sold.

122. In this context, the notion of “open source” is often mentioned, but it should not be confused with open standards. While open standards are technical specifications developed in transparent and open processes and are available for implementation on reasonable and non discriminatory terms, but not necessarily royalty free, “open source” rather refers to a software distribution model based on an IPR, mainly copyright. Generally speaking, open-source software refers to software for which the source code (underlying programming code) is made freely available for use, reading the code, changing it or developing further versions of the software, including adding amendments to it (see sub-Chapter (c)(i) below for further details regarding open source). While open source software has been used to implement some ICT standards, other standards are implemented through proprietary software or, as is increasingly the case, through the use of mixed platforms that combine both open source and proprietary software. When governments and other users are in the process of selecting a specific technology to meet their needs for interoperability and/or free use of that technology, in addition to the open or proprietary nature of any software involved, factors such as overall costs, the maturity of the technology, and the support offered, should be taken into account.

TEC is a funny process. The EU Commission basically bows unilaterally in to aggressive US demands in order to demonstrate its ability to act without getting anything substantial in return from the Americans. The agenda is largely set by the TABD, i.e. large industry stakeholders based in the US. At the press conference Verheugen admitted the lack of competence. Apparently Council members were not fully made aware of the deliberations. Also the consumer group token formally attached to the TEC process, the TACD, were not in possession of the road map document. Its counter part TABD, the transatlantic business dialogue, comprising mostly American multinationals and no SMEs, seems to define the agenda for the transatlantic trade talks and openly tells so.

Alfonso Calles Sánchez from the European Commission announced me today the road map document was finally made available on their website.
Here is the original document:

European Commission-US roadmap to support and facilitate international patent law harmonization
During the first Transatlantic Economic Council (TEC) Meeting on 9 November in Washington D.C., Charlie
McCreevy, European Commissioner for Internal Market and Services, and Carlos M. Gutierrez, US Secretary of
Commerce, agreed that by the next meeting of the Council (end of May 2008), the U.S. Government and
European Commission will agree on a roadmap to support and facilitate international
patent law harmonization. The goal is to make progress towards an efficient and effective global patent
system, especially within the so-called Group B+.
1. The European Commission and US will cooperate at a technical level to lay groundwork for higher level EC-US contacts and will coordinate in advance of upcoming meetings with other Group B+ members and stakeholders with a view to facilitating progress in those discussions. Timeframe: May-September 2008
2. The European Commission intend to discuss with EU Member States on the Alexandria process and the activities mentioned in this roadmap in the framework of the B+ Group. Timeframe: May-September 2008
3. The European Commission and US will cooperate in informal B+ WG1 consultations organized by the WG1 Chair on the basis of the timeline/modalities agreed on the margins of 12 March Trilateral meeting in Munich. Timeframe: May-September 2008
4. The European Commission and US will take note of stakeholder views, in particular at meetings tentatively scheduled to be held in Brussels in May 2008 and in Washington in June 2008. Both sides will share the outcome of consultations with each other and other B+ members. Timeframe: May-July 2008
5. The European Commission and US will exchange views on the draft document to be provided by B+ WG1 Chair as requested during 2007 B+ Plenary, and share those views with EU Member States. Timeframe: May-August 2008
6. The European Commission and US will hold a senior level meeting, as appropriate, to coordinate for the Group B+ Plenary, tentatively scheduled for September 2008. Timeframe: September 2008 (before B+ Plenary)

What is the b+ group? In short its industrial nations, a sub group of WIPO member states. And it includes a trouble maker as Brazil. Substantive patent harmonization is currently mostly blocked because the United States is stuck to perform the switch to a first to file regime and certain developing nations try to water the SPLT down with quite a success. The current draft of the SPLT is an empty cover of what it was supposed to achieve. The most simple way to achieve substantive patent harmonization is to expand the signatories of the Munich convention.

The surprising aspect of the road map is the mandate for the Commission to negotiate with the US and the very tight schedule. The Commission would "share those views with EU Member States", quite a hybris in EC legislative matters. As of the consultations they would only give the Transatlantic Business Dialogue any significant means of influence. The European Parliament will not even be consulted.

"The treaty is alive, and we should now try to find a solution".

There is no doubt that there will be attempts to bypass the decision of the pools in Ireland.

The French Minister for European Affairs is saying the same:

In France, senior officials insisted that, whatever the Irish outcome, other European countries must continue their procedures to approve the treaty.

“The most important thing is that the ratification process must continue in the other countries and then we shall see with the Irish what type of legal arrangement could be found,” Jean-Pierre Jouyet, the French minister for European affairs, told LCI television. He did not specify what form this legal arrangement might take.

“We cannot take a country out of Europe that has been there for 35 years,” Mr. Jouyet added. “But we can find specific means of cooperation.”

It is clear that some decision makers will try to bypass the Irish vote.

E-1533/08EN
Answer given by Mr Kallas
on behalf of the Commission
(14.5.2008)

1. On 22 May 2007, the Commission concluded - on its own behalf as well as on behalf of another 37 EU Institutions (including the Parliament) and Agencies - the so-called “Interinstitutional Licensing Agreement” (ILA) with Microsoft Ireland Operations Ltd, which governs the non-perpetual right to use a number of Microsoft software products, both on part of the central server infrastructure and for the final users (desktops and laptops). This subscription-based contract entered into force on 1 June 2007 for an initial duration of three years and may be renewed for one additional year. Concerning its financial value, the Commission refers the Honourable Member to its reply to written question E-2735/031 by Mr Ford; as stated therein, the ILA does not involve any direct revenue to Microsoft because the products are acquired through a Large Account Reseller (LAR) selected through an open call for tenders. See point 2 for further information on the LAR expenditure.

In addition, on 31 May 2007, the Commission concluded - on its own behalf as well as on behalf of another 21 EU Institutions (including the Parliament) and Agencies - a framework contract with Microsoft SA/NV (Belgium) covering the provision of high-level services related to the use of products acquired under the ILA. This framework contract, which replaces a previous one, entered into force on the date of signature for an initial duration of three years and may be renewed for one additional year.

During 2007, the Commission signed specific contracts for an amount of €32,000 under the previous framework contract for services and €1,336,800 under the new framework contract (i.e. since 31 May 2007).

Again during 2007, the totals - including the Commission and the other concerned EU Institutions and Agencies which, by 31 March 2008, had notified the relevant figures for the purposes of Article 118(4) of the Implementing Rules2 - are €1,081,610 under the previous framework contract for services and €2,241,565 under the new framework contract (i.e. since 31 May 2007). These totals have been published pursuant to the above-mentioned provision3.

2. During 2007, the Commission paid a total amount of €4,484,023 under its framework contract with the LAR chosen following an open call for tenders, in consideration for the software products covered by the ILA; another 12 EU Institutions and Agencies were parties to this framework contract, which had entered into force on 23 February 2004 and expired on 22 February 2008.

Again during 2007, the total - including the Commission and the other EU Institutions and Agencies participating in the Commission’s contract with the LAR which, by 31 March 2008, had notified the relevant figures for the purposes of Article 118(4) of the Implementing Rules - is €7,242,525.72. This total has been published pursuant to the above-mentioned provision 4.

A new LAR contract has been awarded following a recent call for tenders5, but it was not used during 2007.

It should be stressed that the Commission does not acquire any peripherals (such as keyboards and mice) from Microsoft, as this type of equipment is included in the calls for tender aimed at acquiring the hardware to which the peripherals are connected (e.g. personal computers (PCs) or laptops). The Commission is not aware of any such acquisitions by the other EU Institutions and Agencies either.

3. The Commission does not pay to Microsoft any fees in relation to intellectual property rights, other than those already included as part of the right to use the software products covered by the ILA, and paid through the LAR.

The Commission is not aware of any such separate payments by the other EU Institutions and Agencies either.

4. According to the metrics defined in the ILA, the total number of end users at the Commission in 2008 can be estimated at 35,960 worldwide. This figure corresponds roughly to the number of PCs on which the reference configuration for client desktops (including software products from Microsoft and several other editors) is installed. It includes the 25,537 permanent posts (officials) and 483 temporary posts (temporary agents) laid down for the Commission in the Authorised Establishment Plan (Staff) of the General Budget 2008, as well as other categories of users (contract staff, local staff, special advisers, seconded national experts, trainees, external service providers, etc.).

The Commission cannot provide the precise number of end users for the other EU Institutions and Agencies included in the ILA, as this exercise involves the computation of parameters which are defined in their individual specific contracts with the LARs.

The Commission would point out that, by comparing its LAR expenditure in 2007 with the current total number of end users, one reaches a figure of around €125 (per year and end user). It should be noted that this figure represents only a marginal part of the cost of operating and maintaining the Commission’s office automation environment. It does not correspond to any particular unit price laid down in the ILA, but to the right to use a combination of products acquired through the LAR. In any case, one can note a significant decrease in comparison with previous years. For example, in the Commission’s reply to written question E-2735/03 mentioned above, the total annual cost of Microsoft products for its central office automation infrastructure was estimated to be around €226 per user.

Here is the press release in french:

Communiqué de presse du Conseil des ministres du 23 mai 2008
FR | NL


Délivrance de brevets européens

Approbation et exécution du Protocole de Londres

Sur proposition de MM. Karel De Gucht, ministre des Affaires étrangères, et Vincent Van Quickenborne, ministre pour l'Entreprise et la Simplification, le Conseil des ministres a approuvé un avant-projet de loi portant approbation de l'Accord sur l'application de l'article 65 de la Convention sur la délivrance de brevets européens (Protocole de Londres, 17 octobre 2000). Il a également approuvé un avant-projet de loi portant exécution du même Accord.

Par le Protocole de Londres, les Etats membres de l'Organisation européenne des brevets souhaitent diminuer les coûts des brevets. Les coûts élevés sont essentiellement dus au nombre de traductions nécessaires. Les PME européennes ont dès lors moins facilement accès au système européen des brevets. Cela freine la promotion de l'innovation en Europe.

Le Protocole prévoit une renonciation, sous certaines conditions, à l'exigence de traduction. Jusqu'à présent, chaque Etat membre pouvait demander une traduction d'un brevet dans une de ses langues nationales pour pouvoir le valider. Si la Belgique ratifie le Protocole, ce ne sera plus possible.

L'avant-projet qui exécute l'Accord modifie deux lois qui règlent la validation des brevets européens en Belgique ainsi que leurs conséquences :

* la loi du 21 avril 2007 portant diverses dispositions relatives à la procédure de dépôt des demandes de brevet européen et aux effets de ces demandes et des brevets européens en Belgique,
* la loi du 8 juillet 1977 portant approbation de la Convention sur la délivrance de brevets européens.

Pour plus d'informations :
Service de presse de M. Karel De Gucht, ministre des Affaires étrangères
M. Vincent Stuer
02/501.84.06 - 0473/29.04.43
eb.def.lebolpid|reuts.tnecniv#eb.def.lebolpid|reuts.tnecniv

Service de presse de M. Vincent Van Quickenborne, ministre pour l'Entreprise et la Simplification
M. Tim Van Broeckhoven
0473/36.28.57
eb.Qretsinim|mit#eb.Qretsinim|mit

Service Communication du Conseil des ministres
Direction générale Communication externe - Chancellerie du Premier ministre

And in Flemish:

Persbericht van de ministerraad van 23 mei 2008
FR | NL


Verlening van Europese octrooien

Goedkeuring en uitvoering van het Protocol van Londen

De ministerraad heeft ingestemd met een voorontwerp van wet voor de goedkeuring van het Verdag inzake de toepassing van art. 65 van het Verdrag inzake de verlening van Europese octrooien (protocol van Londen, 17 oktober 2000). Hij stemde ook in met het voorontwerp van wet houdende tenuitvoerlegging van dat Verdrag. Minister van Buitenlandse Zaken Karel De Gucht en minister voor Ondernemen en Vereenvoudigen Vincent Van Quickenborne legden de twee voorontwerpen voor.

Met het protocol van Londen willen de lidstaten van de Europese octrooiorganisatie de kosten van de octrooien verminderen. De hoge kosten zijn voornamelijk het gevolg van het grote aantal vertalingen dat nodig is. Daardoor hebben Europese KMO's minder gemakkelijk toegang tot het Europese octrooisysteem, wat de bescherming van innovatie binnen Europa afremt.

Het protocol kent daarom onder bepaalde voorwaarden vrijstellingen toe van de vereiste om te vertalen. Tot nu toe kon elke lidstaat vragen om een octrooi naar een van zijn nationale talen te laten vertalen om het octrooi te kunnen valideren. Als België het verdrag ratificeert, is dat niet meer nodig.

Het voorontwerp met de uitvoering van het verdrag wijzigt twee wetten, die de validatie van de Europese octrooien in België en hun gevolgen regelen:

* de wet van 21 april 2007 houdende diverse bepalingen betreffende de procedure inzake de indiening van Europese octrooiaanvragen en de gevolgen van die aanvragen en van de Europese octooien in België.
* de wet van 8 juli 1977 houdende goedkeuring van het Verdrag betreffende de verlening van Europese octrooien.

Voor meer informatie:
Persdienst van minister van Buitenlandse Zaken Karel De Gucht
Woordvoerder: Vincent Stuer
02/501.84.06 - 0473/29.04.43
eb.def.lebolpid|reuts.tnecniv#eb.def.lebolpid|reuts.tnecniv

Persdienst van minister voor Ondernemen en Vereenvoudigen Vincent van Quickenborne
Woordvoerder: Tim Van Broeckhoven
0473/36.28.57
eb.Qretsinim|mit#eb.Qretsinim|mit

dienst Communicatie van de Federale Ministerraad
algemene directie Externe Communicatie - Kanselarij van de Eerste Minister

I have to check about the law of 21 april 2007, because maybe you can file patents in French or German today without having the requirement of translation in Flemish, since French or German are official languages of Belgium:

Art. 3. § 1er. Si le texte dans lequel l'Office européen des brevets délivre ou maintient un brevet européen, à la suite d'une demande dans laquelle la Belgique a été désignée, n'est pas rédigé dans une des langues nationales, le demandeur doit fournir à l'Office de la Propriété Intellectuelle une traduction dans une de ces langues, dans un délai de trois mois à compter du jour de la publication de la mention de la délivrance du brevet ou, le cas échéant, de la décision relative au maintien du brevet sous sa forme modifiée.

According to the refLex webpage, there should be a decision of the Conseil d'Etat number 41069 on this issue. But I am unable to find it.

Note that the FEB, UWE, VOKA or UEB seems to be in favour of patents in French or German.

Belgium has the strange situation where a patent filed in German (a language spoken by 1% of the population) has validity without any translation requirement, according to this article of DroitBelge.net:

Belgium has not ratified the London agreement yet, and it is not clear at this stage whether it will. As in the past, European patents may be validated in Belgium only upon filing of a translation in one of its “national languages.” (4) There has been some debate as to whether a European patent drafted in German or a German translation thereof could be validly filed with the Belgian patent office to validate it in Belgium. The debate concentrated on the use of the expression “official national languages” with respect to the provisional protection conferred by a European patent application defined in Art.3, §3 of the Belgian patent law of 08.07.1977; note that this expression has never been used with respect to validation of a European patent in Belgium. The Belgian intellectual property office is of the opinion that a European patent could be validated in Belgium by filing a German version thereof since German is a “national language” of Belgium (5). This view seems to be confirmed by the legislators who amended Art.3, §3 of the Belgian patent law of 08.07.1977, deleting the term “official” (cf. Art.2, §3 of the Belgian Bulletin of 04.09.2007, p.45943). Some, however, still wonder how a judge would answer the question of how can a patent be considered as valid in Belgium when drafted in a language spoken by less than 1% of the population (6).

[…]

(4) Art.5, §1 of the Belgian patent law of 08.07.1977 and Art.3, §1 of the Belgian Bulletin of 04.09.2007, p.45943.
(5) cf. Official Journal of the EPO (1999), p.320 (http://www.european-patent-office.org/epo/pubs/oj99/5_99/5_3209.pdf).
(6) http://fr.wikipedia.org/wiki/Probl%C3%A8mes_communautaires_en_Belgique

by Alyn Smith (Verts/ALE)
to the Commission

Subject: Use of the term 'ppm' in the computer imaging industry

A concern has been raised with me by a constituent regarding the use of the term 'ppm' (pages per minute) within the computer imaging industry for printer specifications. I am told that the use of the term 'ppm' used to market the product can often be misleading, as it often refers to the poorest quality of printing as opposed to a standard quality, which the consumer would expect. Moreover, 'ppm' does not accurately reflect the true number of pages that may be produced per minute, due to several other variables, such as the text used in the document and use of graphics, lines or other objects. This I am told results in the consumer purchasing a product under false pretences.

Can the Commission state what its view is on this? Are there any European regulations that prohibit companies from misinforming consumers in this way, especially in terms of the use of the term, the advertising of products, and descriptions of products' ability?

Answer given by Ms Kuneva on behalf of the Commission

There is EU legislation which protects consumers from the misleading use of technical terms relating to the performance of a product.

If a trader makes misleading claims concerning the number of ‘pages per minute’ which a printer should be capable of delivering, this may constitute an unfair commercial practice under Directive 2005/29/EC(1) on Unfair Commercial Practices (‘UCP’), which was adopted on 11 May 2005. UCP requires that traders operate according to the requirements of professional diligence and that they do not provide the consumer with false, untruthful or incomplete information on a wide range of elements including but not limited to the main characteristics of the product, its fitness for purpose, its specifications and the results to be expected from its use.

Moreover, the directive requires that traders provide such information in a clear, intelligible and timely manner: presenting factually correct information in a deceiving manner may also constitute a violation of UCP.

The new laws transposing the directive had to be applicable by December 2007 in the Member States. Despite the fact that the United Kingdom has not transposed the directive yet, some legislation should exist at a national level under the previous Misleading Advertising Directive. Under the latter directive, misleading statements regarding the specifications of a product and/or its performance may have constituted a misleading practice, based on the specific facts and circumstances of a concrete case.

However, it remains the exclusive competence of national authorities and courts to apply the national laws implementing EC law, including the Misleading Advertising and Unfair Commercial Practices Directive.

The Commission suggests that the Honourable Member's constituent brings the matter to the attention of the competent enforcement authorities in the United Kingdom(2).

(1) Directive 2005/29/EC of the Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the Parliament and of the Council and Regulation (EC) No 2006/2004 of the Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ L 149, 11.6.2005.
(2) The contact details of a consumer association in the United Kingdom which may be able to give further advice on this matter: Which?, Castlemead, Gascoyne Way, SG14 1LH Hertford, United Kingdom, tel: (44-1992) 82 28 00, fax: (44‑20) 77 70 74 85, email: ku.oc.hcihw|hcihw#ku.oc.hcihw|hcihw, website: http://www.which.co.uk

New President at European High-Tech Industry

EICTA, the industry body representing the information and communications technology and consumer electronics industries in the European Union announces that Erkki Ormala has been elected as President and Chairman of the Executive Board. Dr. Ormala is Vice President, Technology and Trade Policy of Nokia Corporation where his responsibilities cover political, regulatory, economic, market access and other business environment related issues. The main Eicta policy issues are in his area of responsibility at Nokia. He takes over from Rudy Provoost, who led the organization for the past four years.

Erkki Ormala
President
Nationality: FI
Start Date: 23.05.2008

He is succeeding at the head of the EICTA to Rudy Provoost, who was from another small european company.

According to Groklaw, also Denmark has objected:
http://www.groklaw.net/article.php?story=20080531134006167

PJ also discusses what happens next and how the complaints relate to ISO's code of ethics.

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None of those protocols and file formats are described in specifications, neither they are standardized nor free of patents or other restrictions. Why Europe is choosing technology which is not accessible to everybody, regardless of the platform?

Letter To The Editor

We need to work together on live streaming challenge
Published: Friday 23 May 2008
Jonathan Zuck, President, Association for Competitive Technology

Sir,

Regarding 'Parliament under pressure for shunning free software':

While we sympathise with the FFII petition to the European Parliament
on streaming plenary sessions, we are equally concerned about broad
categorical mandates with regard to software procurement. While the
notion of "non-discrimination" is worthy, the idea of mandates is a
slippery slope. If I only have a slow modem connection in my home,
should I circulate a petition to prevent the distribution of broadband
content by the Parliament because it is discriminatory? In truth,
there are free alternatives for viewing Widows Media including
TurboLinux, Xine, Real and InterVideo.

Obviously the agenda here is political and not the public clamouring
to watch more plenaries on their computers but contrary to the
rhetoric of a vocal minority, commercial software is not the
playground of big business, but primarily of inventive SMEs thriving
in niche markets. Only the protection of their intellectual property
permits those small business innovators to create growth and jobs.

Commercial software must therefore be allowed to compete on a
level-playing field with other software types. Public procurement
decisions should be based on technology neutrality, allowing
governments to buy software on its merit and not through categorical
preferences. To advise otherwise is to demand the imposition of one
business model over another.

As technologists, let's work together to devise a solution to the
streaming challenge presented to the Parliament that does not involve
overthrowing a solid technology but is creative in delivering that
technology to a broader audience.

Jonathan Zuck

President

Association for Competitive Technology ( ACT external )

Washington and Brussels

To correct the article of EurActiv, the 2 petitions are not about free software adoption, but well about free and open standards, which are not the same as free software. So the article of EurActiv misses the point and has a confusing title.

Mr Zuck is also mentioning the possibility to decode the WMV format with other applications then Microsoft Windows Media Player:

In truth, there are free alternatives for viewing Widows Media including TurboLinux, Xine, Real and InterVideo.

A large majority of respondents (84%) think that the education system, and in particular the
school curricula does not focus enough on entrepreneurship. They therefore consider it
important to intervene in the education system with more systematic measures. Generally
speaking, curricula are considered to be important but the crucial element for encouraging an
entrepreneurial mindset is a closer link between the SME community (including all types of
companies and SME stakeholders) and schools. Firstly, it is essential to change teachers'
negative attitudes about entrepreneurship by bringing them closer to the real world of SMEs.
Practical training/seminars for pupils should be organised at every educational level, starting
at an early stage with the involvement of all types of local SMEs. Basic economic principles
with a special focus on difficulties and constraints linked to creating and running an enterprise
should be included in school curricula and not limited to specific studies. Mini and virtual
companies are also mentioned as useful tools for developing entrepreneurial attitudes
especially among younger pupils (i.e. in primary schools).

I wonder whether real entrepreneurs consider it compatible with the role of government to build public opinions. I don't think the problem is the goal, its the means. How can reasonable people buy into the notion to change people? Have the Verheugen apparatchik and European business functionaries forgotten basic principles of European liberalism? Or are they too blind to see?

====================================
European Patent Conference 3rd edition
EU vs EPO and Patent Litigation
====================================

Date: Tue 3rd June, 2008
Time: 10h00 to 17h00
Location: DeMarkten, Oude Graanmarkt 5, 1000 Brussels
Other: audio streaming and a webchat will be provided to submit
questions

EUPACO-3 is the next conference in our series to provide insights into
the future of the European patent system. The format of the conference
will be different from previous editions, as it allows stronger
interaction with the audience and possibility of taking the floor.

General topics for further discussions:

- Community Patent: EU in the EPO, or EPO in the EU?
- Patent Litigation in Europe: on the road to Texas?

Given the dynamics of the current EU deliberations we decided to adopt
the concept of "bar conferences" meaning that speakers will be
determined on site. The speaker schedule will be updated on indications
of interests.

A speaking slot would normally comprise 15-20 minutes plus discussions.

The entrance is offered free of charge.

We would appreciate your early registration as a participant or
submission of a talk proposal on our website:

http://www.eupaco.org/eupaco3

Looking forward to meet you in Brussels or online,

—
Pieter Hintjens <gro.ocapue|ksed#gro.ocapue|ksed> +32-2-4148403

"Talks in the Transatlantic Economic Council (TEC) are the current push for software patents. The US want to eliminate the higher standards of the European Patent Convention. The bilateral agenda is dictated by multinationals gathered in the Transatlantic Economic Business Dialogue (TABD). When you have a look who is in the Executive Board of the TABD, you find not a single European SME in there", says Benjamin Henrion, a Brussels based patent policy specialist.

TEC which comprises EU and US high level representatives put a substantive harmonisation of patent law on its agenda. Substantive patent law covers what is patentable or not. The attempt to impose the low US standards on Europe via the Substantive Patent Law Treaty (SPLT) process utterly failed at the World Intellectual Property Organisation. Also progress in the WIPO B+ subgroup (without developing nations) could not be reached. Now the TEC is used as a new forum to push forward with lowering patentability standards through the back door. The TEC is a closed process, and sits outside the WIPO multilateral treaty talks. Since WIPO participants Brazil, India, and China began to fight EU-US proposals for ever more aggressive patents, the EU and US have begun their own bilateral talks.

The main difference is that the TEC is a trade process. The use of free trade talks to change patent laws has precedence. In the GATT negotiations the United States diverted a Free Trade process to blackmail trade partners to accept the TRIPs treaty that limited flexibilities of their national patent law.

In 2005, the EU Parliament did not want to make software patents enforcable in Europe after massive opposition from citizens, small European software businesses, parliamentarians of all sides, and civil society. The United States and US stakeholders intervened without success in internal matters of the EU in favour of software patents. In the same year the Indian parliament resisted the US pressure to change its patent laws. The US diplomacy insisted in India on alleged TRIPs obligations to permit software patenting.

Commissioner McCreevy's home constituency, Ireland, is the main base in Europe for large US software firms who repatriate most of their EU profits as licenses and "patent royalties" without paying taxes in Europe. In his former government office McCreevy build the Irish tax-free harbour.

FFII President Alberto Barrionuevo adds: "The European Union does not have a Community Patent, neither a substantive patent law in its acquis, except the biotech directive. As long as there is no substantive patent law in the EU, it is quite silly to discuss about a bilateral patent treaty with the United States. Its like a blind showing the way for a deaf. If the USA really wanted to fix their patent practice they should first switch to first-to-file and join the European Patent Convention."

Meanwhile, according to reliable sources within the EU a confidential and dedicated Working Group inside the European Council of Ministers has been created to discuss this proposed patent treaty. The agenda and terms are put forward by the United States whose patent law does not meet European standards.

Background Information

Agenda Meeting objectives for 13 May [1]

Patent Law Harmonization : Agree on roadmap."

WhiteHouse: Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union:

Cooperate on improving the efficiency and the effectiveness of the patent system at the global level to promote innovation, employment, and competitiveness, and seek progress in the harmonisation of the different patent regimes;

TABD: Transatlantic Business Recommendations for Action by Transatlantic Economic Council:

Patent Law Harmonization: The TEC work program needs to specify the step-by-step plan proposed for progress on convergence of US and EU patent regulation. We understand that the US put forward a roadmap proposal at the end of January, but it is not clear what, if any, are the agreed milestones for the roadmap going forward.

Links

• Transatlantic Economic Council: objectives for Spring 2008 meeting
• WhiteHouse: Framework for Advancing Transatlantic Economic Integration Between the United States of America and the European Union
• TABD: Transatlantic Business Recommendations for Action by Transatlantic Economic Council
• IP-watch: Draft treaty text available (with a sensitive part marked as "reserved")
• European Commission: Transatlantic Economic Council
• IP-watch: Group B+ Draft Patent Harmonisation Treaty Emerges
• Permanent link to this press release

Contact

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
gro.iiff|noirnehb#gro.iiff|noirnehb
(French/English)

About the FFII

The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

Microsoft argues that the licensing terms demanded by the EC violate its intellectual property rights.

Let's bet that the Microsoft appeal to the ECJ is about patents. My nose is rarely wrong.

I take the bets.

Washington attorney John Duffy appeared for Regulatory Datacorp, a consortium of financial-services companies that uses patented business data processes to monitor financial crime and terrorism funding. Duffy told the panel he believes the U.S. Congress wants companies to have broad access to business-process patents. "The intent of Congress is to be broad," Duffy said.

Shortly after a new government was installed in Bangkok earlier this year, European Union trade commissioner Peter Mandelson urged it to review a series of compulsory licenses issued by the previous administration that overruled patents on several medicines. [compulsory licensing == right to license an invention, the patent is not "overruled" as IP Watch claims]

But the European does not back the aggressive push of the European Trade Commissioner.

[MEP] Agnoletto alleged that there is a contradiction between statements that Mandelson has made to the [European] Parliament and those contained in his letter. “He is using two different languages,” Agnoletto added. “I have the impression he is working more for the pharmaceutical industry than for the Commission.”

From the NGO side Médecins Sans Frontières is beating the drum.

Hartmut Pilch, FFII: Ist es wirklich in Ordnung, wenn man Software patentierbar macht, ohne vorher eine systematische Studie der ökonomischen Auswirkungen einer solchen Änderung zu erstellen

Tauchert: Selbstverständlich. Wir brauchen keine ökonomische Studie. Die Wirklichkeit spricht für sich. Der Markt hat das Urteil bereits gesprochen. Bei uns gehen jedes Jahr Tausende von Anträgen auf Softwarepatente ein, und unser Patentsystem wirft Gewinne ab. Es ernährt ohne staatliche Zuschüsse 20000 Patentspezialisten.

Harmut Pilch: Is it really appropriate to make software patentable, without conducting a systematic study of the economical effects of such a change first.

Tauchert, DPMA: Absolutely. We don't need economic studies. The reality speaks for itself. The market already made its judgement. We receive every year thousands of applications for software patents and our patent system is profitable. It feeds without state subsidies 20 000 patent specialists.

WRITTEN QUESTION E-1797/08
by Saïd El Khadraoui (PSE)
to the Commission

Subject: Creative commons

Article 8(2) of Directive 92/100/EEC1, which concerns broadcasting and communication to the public, reads:

'Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. (…)'

Taking this as a basis, the Belgian legislature has introduced compulsory equitable remuneration (the 'dwanglicentie' [compulsory licence]). This means that every artist and producer has to seek remuneration for his music. As in the case of authors, however, there are artists and producers who wish to make their music available free of charge as creative commons.

1. Is the term 'provide a right' which is used in Article 8 sufficiently defined for it also to be regarded as a duty?

2. Can Member States take measures to leave the option open that the equitable remuneration does not have to be collected if the rights-holders voluntarily choose to waive their right to remuneration?

We need to be precise about what reasonable and non-discriminatory actually means. A restaurant in apartheid South Africa said it allowed both Boers and English, so was "not discriminatory". It even let some Jews in. However it banned non-whites.

Reasonable and non-discriminatory in patent licensing means "we apply a uniform fee". However with respect to Microsoft's legacy OOXML format, one party controls the standard and the associated patents. All market players need to license except the patent owner. For dominant standards it is a tax on the market. It seems highly unreasonable that such standards should become international standards, mandatory for government users.

You may find it unreasonable for an ubiquitous standard. But there is a more insidious aspect. RAND patent licensing conditions are a tool to ban Free Software, which is entirely incompatible with RAND licensing conditions. Now one side of the debate blames it on the patent licensing conditions, the other side on the software licensing conditions.

The reason I agree with the statement about patents and Free Software not mixing is that there have been terms written into GPL licenses that explicitly conflict with software patents. Okay, that is the choice of the authors and users of those licenses.

It sounds a bit like: well, you chose to marry an African woman, so we cannot let you into the restaurant. Free choice, right?

Yes, Matusow calls his standards with RAND conditions "open standards" and contradicts the commonly accepted definition of "open standards". We should speak about shared standards. These shared standards appear to discriminate less, but they still discriminate against the only real competitor to Microsoft's hegemony.

It is true that ISO, driven by simple pragmatism, allows shared standards. From the ISO/IEC directives:

14.1 If, in exceptional situations, technical reasons justify such a step, there is no objection in principle to preparing an International Standard in terms which include the use of items covered by patent rights – defined as patents, utility models and other statutory rights based on inventions, including any published applications for any of the foregoing – even if the terms of the standard are such that there are no alternative means of compliance.

Generally international standards and patents are like water and oil, and RAND conditions are the soap that allow them to mix. But as the move towards Open Standards evolves, shared standards get more and more unacceptable. Shared standards do discriminate and do appear to be unreasonable.

It is time to adapt the legal definition of reasonable and non-discriminatory to common sense.

The predictions, made in a keynote address by Mike Rhodin, General Manager of IBM Lotus software, at the VoiceCon conference here, include:

1. The Virtual Workplace will become the rule. No need to leave the office. Just bring it along. Desk phones and desktop computers will gradually disappear, replaced by mobile devices, including laptops, that take on traditional office capabilities. Social networking tools and virtual world meeting experiences will simulate the feeling on being there in-person. Work models will be changed by expanded globalization and green business initiatives that reduce travel and encourage work at home.
2. Instant Messaging and other real-time collaboration tools will become the norm, bypassing e-mail. Just as e-mail became a business necessity, a new generation of workers has a new expectation for instant messaging (IM) as the preferred method of business interaction. This will fuel more rapid adoption of unified communications as traditional IM becomes the core extension point for multi-modal communications.
3. Beyond Phone Calls to Collaborative Business Processes. Companies will go beyond the initial capabilities of IM, like click-to-call and online presence, to deep integration with business processes and line-of-business applications, where they can realize the greatest benefit.
4. Interoperability and Open Standards will tear down proprietary walls across business and public domains. Corporate demand for interoperability and maturing of industry standards will force unified communications providers to embrace interoperability. Converged, aggregated, and rich presence will allow businesses and individuals to better find and reach the appropriate resources, removing inefficiencies from business processes and daily lives.
5. New meeting models will emerge. Hang up on routine, calendared conference calls. The definition of "meetings" will radically transform and become increasingly adhoc and instantaneous based on context and need. 3-D virtual world and gaming technologies will significantly influence online corporate meeting experiences to deliver more life-like experiences demanded by the next generation workers who will operate more efficiently in this familiar environment.

Mike Rhodin also takes IBM responsibility for the region North Eastern Europe.

A Public Service Organisation out of control?

As has been widely reported in the last few days, the European Patent Office appears to consider itself not to be bound by European Directives. In the specific case mentioned there was an alleged contravention of the Directive on Biotechnology in relation to European Patent EP-B1 0 695 351.

The European Patent Office is not part of the European Union

Although originally intended to be the authority charged with the grant of patent rights for the European Community, the EPO was created outside the framework of the European Union. As a result, the European Patent Office is in many respects an "autonomous state", which is not bound by any of the directives of the EU unless it so chooses. The "Head of State" is the President, Ingo Kober. He is responsible solely to the Administrative Council, a body made up of representatives from the 19 contracting states who are party to the European Patent Convention. This body is not democratically elected and is accountable only to the respective national governments. As a body created by a separate international treaty this body is not directly bound to any national or international law other than the European Patent Convention, the EPC.

Further loosening of democratic control is contemplated

This Administrative Council is currently contemplating far-reaching changes to the Eurpoean Patent Convention. These changes will effectively mean that in future the Administrative Council can decide autonomously on the future direction of the law governing the award of patent rights in Europe, and the very law by which it is governed itself. No agreement by the European Parliament or any other publicly accountable European organisation will be needed and, as in all deliberations of the Administrative Council, many of which are held in secret session, there will be no participation of society at large. This opens the door to uncontrolled wide-ranging changes to the European Patent System. Recent events suggest that these changes may be against the interest of European citizens.

The Administrative Council already fails to defend the interests of the European public

The Administrative Council has put the Office under pressure to grant patents as fast as possible, without, however, creating the conditions that would make it possible to recruit the necessary staff. This means that the existing staff, already working to their full capacity, are being put under pressure to examine cases faster and faster. With less time being allowed to consider the complicated technical and legal questions which arise in patent examination, it is to be feared that the standards applied will drop. Statements in the press attributed to an EPO spokesman acknowledge that increasing production pressure can indeed lead to errors. See for example:

http://news.bbc.co.uk/hi/english/uk/scotland/newsid_653000/653067.stm

http://www.tagesthemen.de/archiv/2000/02/22/sendung/tt-2230/meldung/gene.html

This could in turn lead to a larger number of patents of dubious validity ("junk patents"), thus impeding fair and open competition in the European Market, and hence threatening the employment market in Europe. This is however simply the tip of the iceberg. Lack of legal security for staff threatens standards The EPO is not bound by many of the laws or regulations that most of the citizens of Europe take for granted, such as the European Convention on Human Rights.

Some examples:

• The Employment Law offers the staff extremely limited protection. Staff can be dismissed almost at will by the President and have no claims to unemployment pay or other social security payments:
• Basic legal rights are ignored. The President is the ultimate ruler of the EPO. He is judge, jury and executioner. His decisions on matters within the office are final. Any decision made by the President can be enacted immediately. There is no "stay of execution" pending the outcome of appeal hearings. Sanctions are arbitrary and harsh. This makes the staff extremely vulnerable to pressure from the management in order to meet demands, e.g. by increasing output to a level beyond which it is possible to assure sufficient attention to detail.
• European safety and health standards are not applied on EPO premises.
• Even criminal law is disregarded: In 1995 the then President of the EPO physically attacked and injured a staff member, the Administrative Council of the EPO subsequently refusing to lift the immunity of the President.

Conclusion

The Administrative Council has shown a tendancy to treat the office as a commercial entity rather than as the public service organisation it is. This results in the continuing demands for ever more granted patents, while refusing to increase the resources of the European Patent Office accordingly. SUEPO, the Staff Union of the EPO soundly condemns this development due to the risks it poses to the quality of patent rights granted in Europe. It is high time that steps are taken to change the structure of the Organisation making it accountable for its actions to the citizens of Europe and their elected representatives.

WRITTEN QUESTION E-4896/07
by Erik Meijer (GUE/NGL)
to the Commission

Subject: Malfunctioning of computers and peripheral equipment where Windows XP is replaced by Windows Vista, and pre-installation of Vista in new computers

1. Is the Commission aware that Microsoft has replaced its 'Windows XP' system by the 'Windows Vista' system, initially for business users and since 30 January 2007 also for the consumer market, and that 'Windows Vista' has since been pre-installed on many new computers?

2. Is the Commission aware of complaints by the Netherlands Consumentenbond (Consumer Association), which commented in August that the new operating system has not yet been adequately developed and is not yet a satisfactory replacement for XP, as it has too many flaws which can only be sorted out by seasoned computer users, and not by ordinary users, and is it aware that the Consumentenbond has set up a centre for registering users' complaints and that within the space of a month 5 200 complaints were received, including complaints about compatibility with peripheral equipment and usability of old software and hardware in combination with Visa?

3. Is the Commission aware that these complaints indicate that, with Vista, computer programmes, printers and video cards often fail to work and network connections are lost, that for this reason the Consumentenbond is advising consumers to only purchase Vista if they are sure that their hardware and software will continue to work with it, and that it also takes the view for this reason that, pending a fully‑fledged version of Vista, Microsoft should give dissatisfied customers the opportunity to go back, without additional charge, to the old, tried and tested Windows XP system?

4. Is the Commission aware that Microsoft only allows - via its OEM partners which supply Windows on their PCs - business clients with the more expensive 'Ultimate' version of Vista to go back to Windows XP, but that for ordinary consumers it has confined itself to date to developing a 'Service Pack 1' which is to make Vista more secure and faster in future and which is currently being tried out on selected testers before being available to everyone to purchase in 2008?

5. What steps is the Commission taking to require producers to supply computers in which, at the option of the customer, an operating system may be installed without bundling with Windows, or at least to ensure that purchasing without a built‑in system is made easier, which, according to the recent advice by the Globalisation Institute, would increase consumer choice?

Sources:
www.nu.nl/news/1251877/50/: Geen _gratis_XP_voor_ontevreden_Vistaklanten
www.globalisation.eu: Policy Briefing Globalisation Institute: Unbundling Microsoft Windows

E-4896/07EN
Answer given by Mrs Kroes
on behalf of the Commission
(26.11.2007)

The Commission is well aware of the launch of Microsoft's Vista operating system and has devoted considerable attention to ensure that Microsoft complies with its obligations under European competition law when launching Windows Vista.

The Honourable Member's questions 2 to 4 do not relate to any concerns with regard to anti-competitive behaviour but to alleged flaws in Microsoft's products or its marketing strategy. The Commission is aware of the various problems consumers appear to have experienced in relation to Windows Vista. Existing EC legislation provides consumers who buy a faulty product (i.e. a computer) with a number of rights. However, the Commission is not entitled to intervene in private disputes. It is up to the Member States to ensure that national laws are brought into conformity with European legislation and that these laws are complied with.

In reply to the Honourable Member's concern over the fact that it is hard to obtain a computer without the Microsoft operating system installed on it, this is an issue the Commission is aware of and is currently monitoring.

The Commission is aware of the difficulties encountered by consumers who want to obtain a PC without a pre-installed operating system. To the Commission's knowledge, the license agreements between Microsoft and the PC producers encourage by way of rebates the pre-installation of an operating system on PCs. However, the operating system does not necessarily have to be one produced by Microsoft. The Commission is not aware of a financial or contractual obligation which would prevent the PC producers from selling their computers without a pre-installed Microsoft operating system. The Commission is aware of one major PC producer which offers a product with Linux pre-installed, as well as of a number of smaller vendors which do likewise and/or offer PCs without an operating system pre-installed.

It appears, rather, that the structure of the market and demand from consumers is the driving force behind the decisions by PC vendors to offer preinstalled operating systems on their PCs. Since the behaviour of PC producers is explained by commercial reasons and is not the result of any behaviour in breach of the EC competition rules it does not fall within the remit of EC competition law.

WRITTEN QUESTION E-1218/08
by Raül Romeva i Rueda (Verts/ALE)
to the Commission

Subject: Use of patented software standards within public administrations

The 'European ICT crossroads: A new direction for global success' conference organised by the Commission's DG Enterprise and Industry on 12 February 2008 could turn out to have been a decisive moment for communications and information in the EU. The idea contained in the conference's title, at least, should be a turning point. It also embodies the very essence of what could be seen as the ideal framework for a wide-ranging and open discussion – without pre-formed ideas – on defining a European strategy on communications, in the search for tools and systems, with a major potential for the future, that are and within the grasp of a greater number of citizens. However, a quick assessment of the discussion document reveals certain worrying features, indicative of a certain tendency towards standardisation by means of patents, which in practice involve the exclusion of free software which is available free of charge. The document clearly supports the (F)RAND option with regard to managing intellectual property rights, which in practice implies not only that a choice has been made beforehand, but furthermore that this choice favours a system which benefits, and is in the hands of, the large software developing companies, rather than users. The document actually explicitly states, several times, that it is impossible for the legislators to impose cost-free status under these circumstances. This means that the commitment to patented standards could run contrary to fundamental principles such as equality, particularly with regard to access to information, and could hamper the implementation of the manifest desire to encourage more effective communication with citizens, which is crucial to the objective of encouraging citizens to identify more closely with the institutions and with European integration. This being so,

Has the Commission taken into account the important, and still increasing weight of open-code software within the information society and the economy in Europe? Does the Commission not think that it is necessary thoroughly to revise the stances adopted in the discussion document, and launch the debate from a broader perspective? Does the Commission not think that the option proposed runs contrary to the Lisbon Strategy of turning the EU into the world's most competitive economy based on the knowledge society, in which development and guaranteed free access to information technology are decisive?

The FLV recording is 1 hour long, for those people who have time, that would be interesting to have a complete transcript.

Microsoft still believes in innovation with patents, probably because they can exclude competitors:

OK. So, thought about giving a free lunch to all those Linux afficionados?

"It's not something you'll likely hear in the near feature or probably [never… I couldn't hear that properly]… And primarily for 2 reasons. We actually do believe that patents do promote innovation. That's why we apply for them and a lot of companies in our industry apply for them. People assert there patents against us all the time. I don't think there are many companies in the industry that pay as much money as we do per year to licensing patents. We have a lot of money and I don't expect anybody to feel sympathy… A lot of companies that we hear from are sometimes companies that have a mix model. They maybe doing some proprietary products they maybe doing some open source products. I don't know of any company in our kind of position when it gets those kinds of demand from other companies that is prepare to say "We know that you're basing your future on this, we'll give you a free pass but you're not going to give us anything in return".

Microsoft needs to be sued more often, because in their current position they still believe too much in a patent system where no software developer has ever used a patent to write a computer program.

PTO’s 1968 Guidelines

Instructed all patent examiners to reject all computer program-related inventions as unpatentable subject matter.

If all computer program-related inventions were unpatentable subject matter at that time, and considering that the law did not change, why does the USPTO is granting zillions of software patents right now? Answer: the CAFC decisions that made all computer program-related inventions as patentable subject matter.

Over recent years a number of new business models for making money out of IP have emerged and along with them have come the IP intermediaries. They may not be universally loved, but they show no signs of going away. In fact, we can expect to see many more evolve.

The authors expect more trolls to come:

More to come

It is clear that the players, and their attitudes, that dominated the feudal period will no longer carry the day. The newly established and emerging IP business models (and the players exercising such models) are not going away. That is, neither US Supreme Court decisions such as eBay and KSR, nor any of the so-called anti-patent troll legislative proposals floating through Congress, will force intermediaries out of the market.

With as much as three-quarters of the value of publicly traded companies in America coming from intangible assets, and global IP licensing revenue now being measured in the hundreds of billions of dollars, there is simply too much economic justification for such entities to exist. In fact, new players implementing the IP business models described herein are continually surfacing. And creative new IP business models will surely come into existence. Why? Quite simply, the business of IP (ie, the IP marketplace) itself is fertile ground for innovation!

Read carefully the "there is simply too much economic justification for such entities to exist". Everybody understands their business model, but not everybody will agree that there is much economic justification for them to exist. Personally, it remembers me the laddy bug on the webshop:

Ladybugs are very useful insects. They dispose of parasites. However, software patent litigators are far too large for them in general.