It appears that years of work in the EU on adopting a sensible approach to software patents will be thrown out and begun anew, according to an action taken here today in Brussels by the EU Conference of Presidents. While I face a steep learning curve on both patents and the byzantine nature of EU procedure, I want to relate my reaction to a press conference held by an alliance of radicals who stated fairly clearly their desire to never see software patented in Europe, even if it is obliged to do so under TRIPs. This EU issue has surfaced repeatedly during our time in Europe, highlighting the fortuitous timing of our presence.

As mentioned earlier, the EU is struggling to develop appropriate language to ensure the protection of patents. Some time ago the European Commission developed language suitable to many in the software industry, but the European Parliament -- a separate player in the debate -- amended that language heavily in favor of those who oppose all software patents. Among the amendments was language that could have tilted the market overly in favor of interoperability via open source software, according to University of Parma Professor Cesare Galli, who spoke at our Milan event. Recently, Poland put the proposed law back on the agenda of the Council of Ministers but also persuaded the Council of Presidents of the European Parliament to request the European Parliament to amend or withdraw the initiative, thus forcing the Council of Ministers to postpone action. Now, according to the experts, the president of the Parliament, Charles McCreevy, must write that request to the president of the Commission, then the Commission must decide on a further process. Bottom line? Looks like the EU will start from scratch.

That was welcome news to anti-software patent activist Florian Muller, who made clear his preference to no action over action. In fact, that was an undercurrent of all the speakers at the event, which included the Polish European Parliament member who started the latest deadlock, Jerzy Buzek. Arda Gerkens, a member of the Dutch Parliament and head of her country's Socialist Party, outlined in detail the lobbying efforts she and others did to block adoption of the patent initiative, including such a level of detail that it seemed to unnerve Buzek. He told the reporters present, hopefully in vain, that her detailed comments were "out of record."

Making it entirely clear that this opposition isn't just about avoiding bad patents but banning all software patents entirely was Alain Liepitz of the Green Party and a representative of France in the European Parliament. Let me use Liepitz' own words at the press conference to demonstrate the messianic aspect of this movement:

We believe in open source, of course, from the ideology that software, the Internet particularly, can be a very interesting way of connecting people, and the prediction of open source software represents a kind of values where everybody would produce for the community and the community would reward anybody by commercial enrichment.

If you focus on the "reward" part, you'd think he was discussing a free market. But in fact he was more closely articulating a different philosphy, one Bill Gates likely was thinking of when he called certain evangelists in this movement Communists. I'm of course thinking of Karl Marx: "From each according to his ability, to each according to his need."

About 30 or so no-software-patent activists were making noise at the press conference. However, the Foundation for a Free Information Infrastructure (FFII) claimed they had 300 activists gathered outside the European Parliament to hand out bananas, representing the fact that the EU patent initiative would make Europe a banana republic. Thing is, I showed up at the square where these 300 activists were supposed to be, when they were supposed to be there. FFII's press release says they were there, FFII representatives at the press conference say they were there. However, I had digital camera in hand, ready to document the moment, and all I saw were protestors against EU importation of honey. I spoke with someone else who works right off of that square, and he also only saw the honey protestors. I also marveled at the fact that these 300 people would stand outside the European Parliament in freezing weather to protest software patents, but then wouldn't show up at the press conference where lunch, coffee and wine was served (a very expensive set-up in the Renaissance Hotel, where the breakfast buffet sets one back 23 Euro). Apparently the stealthy and unseen protestors filled up on bananas and went home rather than show up at the press conference and hear word that they had prevailed with the Council of Presidents. With the protestors absent, I missed out on a Larry Lessig Rapture in Brazil moment.

It perhaps would be educational to hear from people far more informed than me on what this means for Europe and for software developers. CompTIA's top European representative, Hugo Lueders, sat next to me at the press conference, and issued a statement bemoaning the action. He said the delay "cuts to the heart of the Lisbon Agenda," a Commission agreement issued on February 2nd to move forward on growth. The Lisbon agenda calls for "a patent giving more affordable Community wide protection to good ideas" and"powerful incentives for companies to engage in innovation and R&D," and Lueders said the agreement "provides a clear, limited and equitable roadmap for the protection of computer-based IP in Europe.

Association for Competitive Technology President Jonathan Zuck also showed up (he was delayed at first by having lunch with Meg Whitman). ACT issued a statement quoting Jonathan as saying:

There is certainly room for debate on how best to implement software patents, but those ideologues who simply say 'No Software Patents' are not interested in such rational discussions. In fact, there is much Europe can learn from the successes and failures of software patents in the United States and the current efforts to reform the process and improve patent quality. The only lesson that can't be drawn from the American example is the one that the 'No Software Patents' ideologues are so desperate for Parliament to believe. Quite the contrary, it has been small businesses that have used the patent system to great advantage.

Zuck at the press conference stated this to Muller, who responded by citing anecdotes just as Zuck had asked that the debate move beyond anecdotes. Zuck had made a similar point Wednesday night at a pizza-and-beer party hosted by The Centre for a New Europe, at which our Jim DeLong spoke to EU staff and think tankers from around Europe. FFII representative Erik Josefsson at the press conference said patents were too broad, and read from one submitted by Nokia, but Zuck at the CNE event said the courts historically have weeded those out.

Those of us at IPcentral recognize that some U.S. patents are too broad. We also recognize that the appeals process is cumbersome and expensive. We'd like to see patent reform to help the U.S. PTO be better equipped to issue appropriate software patents, and to see an easier way to target overly broad patents or ones with prior art undetected by the PTO both before and after review. That said, we agree with Jonathan when he shared what he called an American expression at the press conference that "we shouldn't throw out the baby with the bathwater." (I think of this as an American expression, but I don't know its origins. Nearly everyone in the room knew it, however, suggesting either it has more global roots or that U.S. culture truly is pervasive. But I digress.)

Some of the panelists, in particular the Polish MEP, said they wanted a positive dialogue with all interested parties going forward. That's clearly what ACT and CompTIA want as well. But the words of the speakers revealed that they are hard-line socialists repeating Jonathan's line of No Software Patents (that's actually the name of Muller's web site), and it's hard to negotiate with people who are the most successful when they gum up the political works, and stand to lose if any compromise language moves. France's Liepitz said he wasn't even happy with the amended Parliament version, the one that greatly upset both the European Commission and the software industry. It reminded me of U.S. groups such as Public Knowledge, who also are most successful when stopping legislation rather than negotiating, as is demonstrated in their boastings on their own web site. I wish the best of luck to Lueders and our other European friends as this battle continues.