Windows Emulation on GNU/Linux (Wine) hampered by Borland Patent

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In May 2005 it became apparent to a large public that some Microsoft Windows programs could not be brought to run on Linux because of a patent held by Borland. Affected GNU/Linux components were GCC and Wine. A public dialogue with Borland began. Although Borland's representatives repeated Borland's traditional attitude that patents "suck" and are collected for defensive purposes only, the problem appeared difficult to solve. The question moreover arises, which of the legislative means currently under discussion in Europe would solve it.

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In May 2005 it became apparent to a large public that the Windows Emulator Wine can not function properly because of a patent held by Borland. Wine emulates the Microsoft Windows environment under Linux, so that programs such as Microsoft Office, that would normally not run under Linux, can be run there. Wine is thus a crucial component for bridging the compatibility barriers and enabling a fair competition of the operating systems.

A public uproar on media such as Slashdot prompted a reaction from Borland. As usual in such cases, previous contact attempts led nowhere and if Borland grants a license this time, the free software projects will still have a problem, because they will in some way have to restrict the four freedoms associated with their code:

The Wine case can also be used as a test case for various provisions proposed in the European Parliament, e.g. which interoperability provision would solve it? which patentability provisions would kill the patent? Under the Council's proposal, the full impact of the US problems would come through to Europe.

Claims of the US Patent

Claim 1

In a development system for compiling source listings into program code for operating a digital computer, said digital computer having a microprocessor and a system memory, said source listings comprising data and functions operative on said data, some of said data being stored in stack-based variables which are local to a particular function, an improved method for registering an exception handler with the computer, the method comprising:

Borland patents at the EPO

According to Depatisnet family search, the US patent #5,628,016 was applied for in the USA only and thus does not have any European cousins.

A search in the FFII's epat database yielded a few similar patents owned by Borland which show that the European Patent Office's technicity requirements are no serious obstacle to the granting of similar patents in Europe. In fact the Borland patents are precisely the kind of software patents which the EPO would like to be seen as granting: improvements in speed and use of data space for computing in general (without much of a drift toward specific application in the area of business processes). The most recent granted Borland application EP1188110 (about use of variables in programming languages) directly uses the EPO's new magic formula "computer-implemented invention", which was introduced in 2000 and written into the examination guidelines in 2001.

Effects of the EP Amendments

Various groups of the European Parliament have proposed amendments which reinstate a meaningful interpretation of the European Patent Convention. The effects of these on the above example patents could be that

This short cursory analysis shows that the interoperability amendment (in some of its variants) can alleviate the problem but only the patentability amendments can solve it.

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