Following a proposal suggested by Rik Hindriks of the Dutch Labor Party, the pro-software-patent Federation of Dutch IT companies, FENIT and the anti-software-patent Dutch Open Source Association will have to work together on a plan to prevent trivial patents from issuing. If they cannot come up with one, the Netherlands will oppose software patents in Europe entirely, rather than set off a US-style software patent crisis.

FENIT claims that software patents will enable innovation, and VOSN claims that they will restrict the evolution of software. After gathering information and doing some own research, the committee found that the Netherlands would vote in favor of software patents in Europe only if restrictive conditions can be met. These conditions should exclude very obvious and trivial patents. Each patent would have to be researched for bringing something really new to market, which is required now as well, but is not done currently. The holders of 30,000 existing software-related patents would have to refile.

A European patent treaty dating from 1973 explicitly excludes patents on software. Since then, however, the European Patent Office has granted around 30,000 alleged software patents. A prominent example is IBM's patent EP0644483, which describes how a computer can run multiple processes at the same time -- multitasking. (The patent dates from after the introduction of UNIX.)

In several cases in Germany, judges have rules that software-related patents are invalid. The European Patent Office wants more clarity. For this reason the treaty from 1973 is being revised and software is considered to become patentable. Each European country can have their say in the change of rules. In a closed hearing on February 15, 2001, politicians Rik Hindriks of the Dutch Labor Party (PvdA) and Thijs Udo of the Liberal Party (VVD) met with VOSN and FENIT. The target was to gain a mindset for the parliamentary commission, which will result in a vote later this year. For this reason the meeting was crucial.

The meeting began with a somewhat tense atmosphere. VOSN was worried trivial inventions could be patented, and the legal position of smaller software development companies would be endangered. In general, this could harm software development in the Netherlands and Europe. FENIT, who did not return my call, pleaded for protection of major investment. Chairman Rik Hindriks (PvdA) started to compare and complement the views. It appeared that both views were closer together than originally anticipated. In a somewhat different approach FENIT now expressed that they felt the danger of larger companies overwelming smaller companies with claims. VOSN, although still opposing the principle of patenting software, could understand FENIT fighting for companies that invested heavily and really did invent something.

All parties present shared the conclusion that a simple removal of the prohibition on software patents would lead to trivial patents. It was also the opinion of all parties that business methods should not be patented at all. And, if a conditional removal of the prohibition of these software patents would occur, it should not automatically mean that the 30,000 disputed patents should get a legal status. Since my last article members of Parliament have visited the Industrial Ownership Department (Buro Industrieel Eigendom - BIE) and concluded that hardly ever is any research done to see if a patent delivers something new to the market, which in Europe is compulsory. From this experience Rik Hindriks would be in favor of making such a check compulsory. "If you really did a firm investment and did a new invention the amount that you will pay for this investigation would be really minimal. It wasn't just me who was very displeased. Also, Het Nederlands Octrooibureau - the patent organization responsible for making the rules - was very displeased by learning this".

These facts led to the proposal of Mr. Hindriks to build criteria to allow software patents under very strict conditions. Three major points should be included. If these points cannot be safeguarded the sentiment of the majority (PvdA, VVD, d66, CDA - which represents more than 75% of parliament) will then vote in a motion against software patents. The logical consequence will be the strong (and normally followed) advice for the Secretary of Economic Affairs to cast an opposing vote on software patents on behalf of the Netherlands. The four points are:

1. Before any software-related patent can be registered, required research will be done to see if anything new is actually being brought to market.

2. The check for new patents will regulated in the law, and has to be enforced. Criteria should be firm and very clear.

3. If a change is to occur in legislation that would allow software patents to be accepted, all software-related patents that are disputed (the 30,000 on the so-called horror-list) have to be reprocessed for the previously stated check.

4. Business methods should be excluded from patenting.

For this reason Hindriks suggested a coalition between the VOSN and the FENIT that will work on the issue and make rules that will incorporate the previous four points. They should formulate criteria that basically safeguard these principles. Both parties agreed. They hope to tackle the issue of trivial patents. If they cannot succeed after serious attempts, the Netherlands will rather have no software patents than an "American" situation.

The strategy introduced by parliament is called the Dutch Polder Model, where you keep talking until you resolve the difference of opinion. Rob Hindriks is very glad that both parties see light in this option. To the question I posed what changed his opinion on the trivial cases he told me that the practical examples the VOSN gave convinced him. "But both parties very realistic and positive on this. I think this is a first step towards a good policy I think", he added.

The FENIT spokesman Peter van Schelven was not available for any comment when I called and did not return my call. VOSN spokesman Luuk van Dijk is pleased with the outcome, but he would have favored no patents at all. Luuk informed me he was enthusiastic and very confident this would work out okay. He felt that his arguing at least led to some result. According to him, Free Software development was safeguarded, and the sentiment is moving in the right direction. Since it is complex to exclude trivial patents, this might mean it will be hard to find the Netherlands voting in favor of software patents at all. At least the Netherlands will not say yes easily.

The game is not over.