A proposal to extend patent protection in Europe could threaten the existence of open source software unless the European Parliament amends it, say advocates of freely distributed programs such as Linux.
However, companies such as Microsoft and Apple Computer argue that they need broader patent protection to prevent open source companies, which give away their software and make money through service, from effectively expropriating their development costs.
A European Parliament committee debated the issue yesterday, and will vote on it a month later.
European Parliament member Michel Rocard, a former French prime minister heading up review of the software patent directive, wants to protect open source software by limiting the scope of patent protection.
Like all programs, open source software must interact with a computer`s other software to work, such as a word processor running on Windows.
Writers of free software cannot properly design their programs without information on how proprietary programs interact with other software.
Rocard and other advocates of open source software argue that coding essential for interoperation needs only copyright protection, while Microsoft and others want patent protection for portions of software used to "talk" to other programs.
A software directive lacking Rocard`s amendment could "be the death knell for open source software", said Thomas Vinje of Clifford Chance, who represents a number of software groups. Allies include Oracle and Red Hat, a distributor Linux.
Patent holders can license their software but open source software is distributed and redistributed at no cost, so there is no way to collect licence fees.
"If you allow anyone to get this information for free you have no way of having any kind of licence," says Francisco Mingorance, director of public policy for the Business Software Alliance trade association, which includes Microsoft and Apple.
The inventors "are deprived of their original investment", he said, expropriating their property.
Patent-worthy software
Underlying that issue is another which is even knottier -- determining what constitutes a "technical improvement" and therefore merits patent protection.
The software patent measure is designed to help harmonise rules across the EU for "computer-implemented inventions".
Computer-implemented inventions include devices such as DVD players, mobile phones, engine fuel injection and digital cameras, which need software to run.
Invent a clever new way to make digital cameras take better pictures, not obvious to other experts in the field, and your technical improvement is worthy of a patent.
But how does one decide the issue when two pieces of software are involved? Is that pure software? Or a technical improvement to a computer-implemented invention?
Open source sympathisers want to tie patents to physical "forces of nature" but their opponents prefer an abstract view.
The issue is a live one in the Microsoft anti-trust case. The European Commission found the software giant withheld interoperability information to hobble rival makers of server software, favouring Microsoft`s own product.
Abstract definitions would put more interoperability information under patent protection.
Some say anti-trust cases should not be confused with the broader issues of patents, which are government grants of monopoly for a set period. Clifford Chance`s Vinje says making it too easy to get patents will make anti-trust enforcement more difficult.
Copyright, used to protect creative works such as films, music, or writing, is granted automatically. It is a narrow right: two people can write different songs about love without infringing copyrights.
But patents require a process to obtain. Those on all sides say big companies with deep pockets can obtain and defend patents better than others in what sometimes become huge court battles.
Mingorance argues patent protection through a harmonised system would make life easier for small companies, because they would not have to defend the same idea in a several countries.
Not everyone on the European Commission agrees with Mingorance.
Said one European Commission official: "Rich companies gobble up the patents. Patent protection is about financial means. Copyright is the true reward for creativity."
The Parliament`s Legal Affairs Committee votes 20 June and Parliament in July. Passage also requires member state approval.
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