Its coming up to 6 months since my last entry on this blog...
For now, I'll just upload some articles for sometime in the near future...

Will the EU ruling against Microsoft have unintended consequences?
The Guardian
Wendy M Grossman
Thursday March 8, 2007

Last week, in the latest twist in its three-year-long investigation into Microsoft for antitrust issues, the European Commission published a "statement of objection" accusing the company of not honouring the settlement reached in 2004. Everyone But Microsoft 1, Microsoft 0, right?

Not so fast.

For the moment, let's leave aside the question of whether Microsoft has behaved badly. A careful reading of the ruling - such as that provided by Ovum research analyst Gary Barnett - suggests there's a hidden patent trap. The 2004 ruling being enforced by Neelie Kroes, the EU competition commissioner, required Microsoft to ship versions of Windows without its media player and also to open its client/server interface to competitors by publishing the protocols that define interactions between clients such as ordinary Windows PCs and workgroup servers so that other companies could make interoperable products.

Microsoft produced a list relating to these protocols, but noted that they were subject to patent protection and were Microsoft's intellectual property. The company accordingly proposed to charge for them; the commission ruled that the protocols weren't innovative enough for Microsoft to charge for them. In other words, Barnett argues, the commission is making a judgement about the value of patents awarded by the European Patent Office.

Patents on software are wildly controversial in the technology world and the EPO, along with the UK's patent office, is reputedly more willing to grant software patents than any other office in the EU. In the first few years of this century, the EU tried to bring in the Computer-Implemented Inventions Directive to harmonise the way patents are granted. The directive included a test for determining whether a particular piece of software was worthy of a patent: did it take a "technical step" forward? The directive failed in 2005 after a lot of wrangling, and even at the time it seemed clear that part of the reason was a power struggle between the various components of the EU government, rather than simple dissatisfaction with the aims of the directive. To anyone who followed those efforts in detail, the European Commission's ruling has a familiar ring.

Many - and not just open source advocates - have called for the reform of the patent system. But few would argue that the reform should be carried out unilaterally by the European Commission or that the commission should take the place of the courts that review patents when they're challenged. And if Microsoft's patents can be overridden by the commission, doesn't that set a precedent for everyone else? Even hardware manufacturers like IBM and Hewlett-Packard have software patents.

So before you pop the champagne corks, consider: is this any way to run a patent regime?


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