Dutch Open Source Society, Industry Group Offer Software Patent Compromise

by Brenno J.S.A.A.F. Winter

Early this year the Parliament of the Netherlands asked the Dutch Open Source Society (VOSN) and FENIT, the Dutch IT company federation, to work together on criteria for excluding trivial patents. Now these criteria have been presented.

The negotiation was an example of the Netherlands' Polder Model, where all parties try and listen to each other's points of view, and special attention is given to those issues on which parties agree. Sometimes this can lead to remarkable results, where otherwise little or no effect was to be expected.

A Dutch Parliamentary commission is working on the issue of whether or not to allow software patents, which are currently illegal in Europe. On February 14th, 2001 two representatives of the Parliamentary committee met with FENIT and VOSN. It was clear that some differences existed between VOSN's and FENIT's positions. For that reason two members of Parliament, Thijs Udo of the VVD (Dutch Liberal Party) and Rik Hindrik of the PvdA (Dutch Labour Party) requested that VOSN and FENIT worked on a joint vision on software patents in Europe.

The Economics Department was clear in its earlier statement; it was in favor of software patents, since so many had already been filed. According to their line of argument, there was a not-so-clear situation. By removing the ban on software patents there would be more clarity. FENIT, in general, was not against patents.

Awareness of the trivial patent issue was brought to Parliament by VOSN. This led to the insight that US-style software patents are not a good thing to have. However, a full opposition was clearly not reachable. VOSN then decided to take the pragmatic approach and kill the most worrisome parts. On March 15, 2001 the committee on Economic Affairs met, and the secretary of Economic Affairs agreed that the official position of the Netherlands would be that it did not agree on changing the treaty on patents without adjusting the rules.

After negotiating and discussing the pros and cons, FENIT and VOSN presented their joint vision. Luuk van Dijk (VOSN) and Peter van Schelven (FENIT) found that, in principle, the two sides had a lot in common. Luuk van Dijk found a good working atmosphere and called Van Schelven "one of the good guys". "It wasn't to hard to convince Van Schelven on the trivial patents. From the hearings he could clearly see the point we were making. And FENIT isn't really waiting for trivial patents themselves. None of us are waiting for laws that block innovation in the way the United States of America is currently experiencing," van Dijk said.

Communication between the two parties was good. "VOSN was open and constructive and really working towards a solution. We as FENIT have never been in favor of trivial patents. Also both parties wanted to limit the patent laws to technology itself, not business methods or vague ideas. Getting a monopoly on a direction on solving problems is not what we want", van Schelven said. Both parties are enthusiastic about the document produced and sent to Parliament.

According to their advice, Parliament should demand the following adjustments in the regulations:

  1. A clear distinction between technical and non-technical terminology.

  2. When computer software is a part of the invention, a fully working program should be submitted in a human-readable format (e.g., the source code has to be available).

  3. The protection offered covers only the implementation as it has been deposited with the patent. This implies that a similar implementation reaching the same solution would not infringe the patent. To be clear: changing a "for" to a "while" isn't enough, since that is a direct copy of the same software and, on a different note, would violate the copyright law. In this way an encryption method that is new can be patented, but you can make a similar (probably incompatible) version.

  4. An experiment is needed to prove that the proposed patent really covers an invention that justifies a patent. It still remains to be seen how this can be done practically. But it is important to prove the case. That procedure is not really a problem for companies patenting a real invention. If you have a business method or an idea to solve a problem, however, this could be trapped as not being a real invention.

  5. Rules to ensure and motivate correct implementation of the patent rules according to the previous stated points need to be established. In the US especially, patents are not judged. It is the clear intention of the Netherlands to make patents valid only when these rules have been applied and satisfied.

All this doesn't mean that everything is already arranged. Peter van Schelven expressed his concerns during my phone call that the Department of Economic Affairs still has to agree with and stick to this advice. It remains to be seen what will happen if other European countries go ahead with software patents. Although the Netherlands could legally veto such a decision, one wonders if that would really happen.

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