Dear Mr McCreevy,
The European Commission is currently involved in a historic antitrust
suit with Microsoft. After similar proceedings have failed in other
parts of the world, the Commission is spearheading the last effort to
return the chance of competition into the desktop and workgroup server
market. In addition, as the decision of the European Court of First
Instance has confirmed, this is urgently needed. This is why FSFE is
supporting your work.
Unfortunately, that unique success is now in danger of becoming a
meaningless victory. With the current Common Position on the directive
on "computer implemented inventions" -- adopted 7 March 2005 by the
European Council -- software patents will cover the interfaces and
file formats.
The central issue of the antitrust case is the protocols that are
"used on the wire" -- without these, only Microsoft can write software
that is interoperable with it's desktop monopoly -- thus extending
their dominance into the workgroup server market. As FSFE has pointed
out in support of the Commission, this information is not secret
because it is valuable, it is valuable because it is secret.
An analogy can be drawn by comparing computer networks to telephone
networks. What Microsoft has done is declare the specific frequencies
used to dial the numbers one and zero "multi-million dollar
investments". The European Commission rightly did not allow Microsoft
to confuse convention with invention.
The current proposed directive grants patents on interfaces and file
formats, the digital equivalent of spoken languages, this proposal
supports monopolising conventions as if they were inventions. Allowing
Microsoft to extend its monopoly beyond the reach of any antitrust
commission in the world, it comes as little surprise that Microsoft is
strongly supportive of the current draft of the directive.
Therefore, the end result may be that Ms Kroes might find a European
antitrust law victory an empty one: Having forced Microsoft to publish
the information necessary to achieve interoperability, it might have
become illegal to write interoperable software. We are therefore
concerned that in a few years you may be forced to draw the conclusion
that Europe has "won the battle, but lost the war".
We jointly urge you and the European Parliament to mandate a clear
definition of the innovation in which software may be included, but
which may not consist of software alone. It is seminal to firmly make
the statement that data processing and transmission are excluded from
patentability.
That way Europe can win both the battle and the war.
With kind regards,
Georg Greve
President
Free Software Foundation Europe (FSFE)