Interoperability and the Software Patents Directive: What Degree of Exemption is Needed

A great concern is that by creating a dominant proprietary standard, one software house may "lock in" the whole market, making it impossible for other programs to interoperate, and so impossible for them to compete.

As the Microsoft case made clear, anti-trust laws can take a very long time to operate, by which time the marketplace may have utterly changed.

EU copyright laws recognise this danger, and Directive 91/250/EEC, Articles 5(2) and (3) and 6, allow decompilation of a program to investigate its interfaces, although the decompiled source code may not be made public, and decompilation is permitted only if the information is not otherwise readily available.

The CEC article 6 (and various amendments that rewrite it) uphold this right of decompilation.

But this is of little help in achieving interoperability when interfaces are patented: interoperation would be possible only by securing a valid licence for the patent. Decompilation is a problem only in the context of copyright. Allowing it in the contexts of patents means allowing nothing.

So an amendment of fundamental importance is ITRE-15 (Article 6(a)), which would create a similar protection for interoperability in the face of patent rights. It reads:

This amendment would e.g. make it possible to convert data from a future patented MSWord format to an new unpatented format. It would not exempt processes which may be involved in using any of the formats. Thus the patents involved in a telecommunication standard would stay valid, but it would be possible to create a second telecommunicaton standard using independent technology and to convert the output of one of the technologies to the input data needed by the other.

This is an extremely moderate proposal. But since it would loosen the stranglehold of corporate patent lawyers on public commmunication infrastructures, it has provoked a severe backlash of the patent lobby. Arlene McCarthy, who had recommended that JURI vote against Art 6a, soon proposed a change that would render it void:

McCarthy tried to sell this proposal to the software patent critics in her party as a "compromise offer".

The patent lobby has so far received support from MEPs such as McCarthy, Wuermeling and Manders without even havnign to argue in public what is wrong with Art 6a. They have not been able to show that Art 6a impairs any legitimate interest of theirs. The only argument has been that Art 30 TRIPs does not allow unreasonable limitations on the enforcability of patents:

The TRIPs treaty needs to be taken seriously. In fact the directive is a good opportunity to concretise the meaning of the treaty.

The TRIPs treaty imposes an obligation to limit patentability and patent enforcability in systematic ways which are not motivated by trade protectionism or adhoc policy considerations in favor of one or the other local interest group.

Art 6a is about systematic limitations to patent enforcement, similar in nature to the exemptions for university research. It is not about exceptions to the exclusive rights conferred by a patent, and it does not prejudice legitimate interests of patent owners, since there is (arguably) no legitimate interest to control the use of communication standards. Thus Art 6a provides a way of solving potential competition problems caused by softwar-related patents, and a concretisation of Art 30 TRIPs. The European Commission has failed to even address these problems. Arlene McCarthy, encouraged by Commissioner Bolkestein, shyes away from clarifying what Art 30 should mean in the context of standardisation, and instead proposes to write the abstract terminology of TRIPs directly into the directive, leaving its concretisation to national caselaw. Thereby the Commission is showing disinterestin "clarification and harmonisation" and a passive, even destructive approach to solving regulatory problems placed before it.