[Politech] British politico defends European plan for software patents

From: Declan McCullagh (declan@private)
Date: Thu Sep 25 2003 - 14:38:41 PDT

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    See as background:
    http://swpat.ffii.org/players/amccarthy/index.en.html
    
    And:
    http://politechbot.com/pipermail/politech/2003-September/000003.html
    
    ---
    
    Date: Wed, 24 Sep 2003 10:34:15 +0200 (CEST)
    From: Lukasz Luzar <lluzar@private>
    To: Declan McCullagh <declan@private>
    Subject: Response to your correspondence regarding the draft EU directive on
      patentability of computer-implemented inventions. (fwd)
    
    
    I have received the following response from Arlene McCarthy MEP regarding
    my concerns about the EU software patents.
    
    -- 
    Lukasz Luzar
    http://Developers.of.PL/
    Crede quod habes, et habes
    
    [[ http://galeria.luzar.pl/ ]]
    
    
    ---------- Forwarded message ----------
    Date: Wed, 17 Sep 2003 10:59:40 +0100 (BST)
    From: Arlene McCarthy
    To: lluzar@private
    Subject: Response to your correspondence regarding the draft EU directive
         on patentability of computer-implemented inventions.
    
    
    Dear Lukasz Luzar,
    
    
    
    Thank you for your correspondence concerning the draft directive on the 
    patentability of computer-implemented inventions.
    
    
    
    The European Parliament's Legal Affairs Committee has voted on my report on 
    the directive and there will be continuing debate and further democratic 
    scrutiny before the directive becomes law.
    
    
    
    At this early stage of legislative process, it is nonetheless important to 
    establish the facts about what the draft EU directive and what I, as the 
    Parliament's rapporteur, are aiming to achieve in the amendments tabled to 
    the Commission proposal.
    
    
    
    It has been suggested that the Parliament's report will for the first time 
    allow the patentability of computer-implemented inventions. This is simply 
    not true. The patenting of computer-implemented inventions is not a new 
    phenomenon. Patents involving the use of software have been applied for and 
    granted since the earliest days of the European Patent Office (EPO). Out of 
    over 110,000 applications received at the EPO in 2001, 16,000 will have 
    dealt with inventions in computer-implemented technologies. Indeed, even 
    without an EU directive, these patents will continue to be filed, not only 
    to the EPO but also to national patent offices.
    
    
    
    As you will be aware, in the US and increasingly in Japan, patents have 
    been granted for what is essentially pure software. Some EPO and national 
    court rulings indicate that Europe may be drifting towards extending the 
    scope of patentability to inventions which would traditionally have not 
    been patentable, as well as pure business methods. It is clear that Europe 
    needs a uniform legal approach which draws a line between what can and 
    cannot be patented, and prevents the drift towards the patentability of 
    software per se.
    
    
    
    My intention is clear in the amendments tabled and in a new Article 4 in 
    the text, to preclude; the patentability of software as such; the 
    patentability of business methods; algorithms; and mathematical methods. 
    Article 4 clearly states that in order to be patentable, a 
    computer-implemented invention must be susceptible to industrial 
    applications, be new, and involve an inventive step. Moreover I have added 
    a requirement for a technical contribution in order to ensure that the mere 
    use of a computer does not lead to a patent being granted.
    
    
    
    Furthermore, the amended directive contains new provisions on decompilation 
    that will assist software developers. While it is not possible to comment 
    on whether any patent application would be excluded from the directive, the 
    directive, as amended, would not permit the patentability of Amazon's 
    'one-click' method. As far as software itself is concerned, it will not be 
    possible to patent a software product. Software itself will continue to be 
    able to be protected by copyright.
    
    
    
    With an EU directive, legislators will have scrutiny over the EPO and 
    national court's decisions. With, in addition, the possibility of having a 
    definitive ruling from the European Court in Luxembourg, thus ensuring a 
    restrictive interpretation of the EU directive and a greater degree of 
    legal certainty in the field of patentability of computer-implemented 
    inventions.
    
    
    
    Some concerns have been raised that the directive may have an adverse 
    effect on the development of open source software and small software 
    developers. I support the development of open source software and welcome 
    the fact that the major open-source companies are recording a 50% growth in 
    world-wide shipment of its products.
    
    
    
    In the amended proposal, I have imposed a requirement on the Commission to 
    monitor the impact of the directive, in particular its effect on small and 
    medium sized enterprises, and to look at any potential difficulties in 
    respect of the relationship between patent protection of 
    computer-implemented inventions and copyright protection.
    
    
    
    Many small companies have given their support to this directive, which will 
    give them more legal certainty as it offers the possibility of protection 
    for their R&D investment, and so assists in spin-off creation and 
    technology transfer and generating new funds for new investments.
    
    
    
    Indeed recently, a small ten-person company in an economic black-spot in 
    the UK granted a licence to a US multinational for its voice recognition 
    software patents. Without European patent protection in this field, the 
    small company could have found itself in the perverse situation whereby its 
    R&D efforts and investment would simply have been taken by a large 
    multinational company, who, with its team of patent lawyers, would have 
    filed a patent on this invention. The EU company could have been faced 
    subsequently with patent infringement proceedings.
    
    
    
    Some lobbyists would like us to believe that having no patents is an option 
    - it is not. No patents would put EU software developers at a severe 
    disadvantage in the global market place, and would hand over the monopoly 
    on patents to multinational companies.
    
    
    
    The work I have done is an honest attempt to approach this matter 
    objectively, and to produce balanced legislation, taking into account the 
    needs and interests of all sectors of the software development industry and 
    small businesses in Europe. No doubt there will be more debate and 
    refinements to the legislation before a final text is agreed under the EU 
    legislation process.
    
    
    
    At a time when many of our traditional industries are migrating to Asia and 
    when Europe needs increasingly to rely on its inventiveness to reap 
    rewards, it is important to have the option of the revenue secured by 
    patents and the licensing out of computer-implemented technologies.
    
    
    
    Software development is a major European industry. In 1998 alone the value 
    of the EU software market was 39 billion. Most of this will be protected 
    by copyright, but genuine computer-implemented inventions must have the 
    possibility, for the future of competitiveness of our industry, to have 
    patent protection.
    
    
    
    
    
    Yours sincerely
    
    
    
    Arlene McCarthy MEP
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