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New Project Hopes to Quell EU Open Source Patent Concerns

Deciding Who Benefits

  • November 8, 2004
  • By Brian Proffitt

Borrowing a concept from a very popular open source site, Open Source Risk Management (OSRM) has launched a study today that's designed to assess whether current European laws regarding technology patents actually do what they're supposed to and protect true innovation rather than corporate interests.

The study, according to Daniel Egger, Founder and Chairman of OSRM, is an integral part of addressing what he feels are the growing concerns many software developers and open source end users have regarding patent litigation.

OSRM will host the project at Grokline.net. There, the project will help to trace the technical history and identify the inventors of key Open Source technologies, and determine whether the European Patent Office (EPO) has accurately granted patents to the true inventors. Results will be posted to Grokline and presented to the newly elected European Parliament in early 2005.

Like its sister site Groklaw, Grokline allows visitors to freely particpate in legal issues by providing evidence for certain projects. Another project hosted on Grokline is the UNIX Ownership History Project

The patent project will allow site participants to examine, discuss, and hopefully provide evidence for the origins of 50 patents. These patents were cited by the City of Munich--following that city's decision to deploy open source technologies´┐Żas potential legal concerns for that city.

By addressing these specific patents, OSRM hopes to kill two birds with one stone. First, the project should directly answer Munich's patent concerns, and second, the general question of who actually benefits from patents may be answered for the European Union just before it holds a second, binding vote on implementing a new patent system.

The key findings of this project will hopefully determine if these patents are held by the true inventor of the patent concept, which is ideally what patents are supposed to do, or if they are merely being held as legal markers, ready to be cashed in during a wave of intellectual property litigation.

"This study is being launched at a critical time--just as the European Union considers whether to establish a patent system almost identical to that in the United States; a system many feel has, at a high price, failed to truly protect and drive innovation," said Brian Kahin, University of Michigan, formerly White House Office of Science and Technology Policy. "Assessing whether or not a patent body consistently grants patents to a technology's true progenitor is an important test for determining whether a patent system is truly effective. The assignment of a patent in effect grants a person or organization a monopoly on that technology. So, if patents are routinely misallocated, those who have spent time and resources driving innovation are unfairly deprived of their just due. And, such a system fails to recognize that the 'innovation' is simply not new and thus not worthy of this type of protection."

Europe's first vote on this new system turned it down, Eggers explained, but before the new vote comes up, a lot of lobbying effort has been made to dissuade the European Parliament of their original decision. Coupled with the launch of this project will be a software patent conference, "Regulating Knowledge: Cost, Risks, and Models of Innovation."

Held in Brussels, Belgium, and sponsored by the Foundation for a Free Information Infrastructure (FFII) and European Green Party, the conference will bring together academics, policy makers and business leaders to assess the global impact of software patents. The first day will emphasize academic and research perspectives on the use and impact of patents. The second day of the conference will be held in the EU Parliament Building with members of the European Parliament in attendance, focusing the discussion on policy issues and context.

At the conference, U.S. patent law and Open Source experts, including Bruce Perens (Open Source community leader; OSRM Director), Dan Ravicher (Public Patent Foundation), Len Newman (OSRM patent project director) and Kahin will participate to offer their perspective based on experience within the U.S. patent system.

Also in conjunction with the conference, Perens will also release a white paper examining the issue of patents and Open Source.

With this conference and the launch of the new Grokline project, Eggers hopes this will serve as a preemptive strike against potential patent litigation for his clients. European businesses' attitudes towards patents are similar to the United States'--at least on a large corporate scale. But when it comes to small- to mid-sized companies, the similarity ends. While many SMBs on both sides of the pond face the most risk against a US-like patent system, in Europe SMBs actually have more of a voice to speak out against such a policy. Thus far, they have successfully used their voice to put brakes on the EU's patent system becoming like the US.

It also doesn't hurt that 75% of patents held in European nations are held by non-European patent holders. This equates to a certain lack of enthusiasm to heavily invest in a potentially litigious patent system.

Eggers hopes that if the second vote, loosely scheduled to occur any time between mid-November to early January, turns down the proposed system, it will give US SMBs something to point to as they continue their efforts for patent reform here.

He indicated that patent reform will be up before the next Congress, and dispelled notions that the new Republican majority might imped the reform process. Eggers believes that there will be a more bipartisan effort to correct that patent system, as legislators from both sides of the aisle have called for reforms.

Eggers hopes that many developers and tech gurus will want to participate at the Grokline project.

"This is an open source venture for us," Eggers explained. "All the information we collect will go right back to the community."

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