2003/09 EP: Software Patent Directive Vote

EuroParl 2003	EP 03/09	Munich	Brussels	Strasburg	Madrid	Bologna	Vienna	London	Berlin	Stuttgart

EU Software Patent Plans Shelved Amid Massive Demonstrations

On Aug 28th, the European Parliament postponed its vote on the proposed EU Software Patent Directive. The day before, approximately 500 persons had gathered for a rally beside the Parliament in Brussels, accompanied by an online demonstration involving more than 2000 websites. The events in and near the Parliament were reported extensively covered in the media, including tv and radio, all over Europe and beyond. Within a few days, the petition calling the European Parliament to reject software patentability accumulated 50,000 new signatures.

Europarl 2003/09 Software Patent Directive Amendments: Real vs Fake Limits

The European Parliament is scheduled to decide about the Software Patent Directive on September 23rd. The directive as proposed by the European Commission demolishes the basic structure of the current law (Art 52 of the European Patent Convention) and replaces it by the Trilateral Standard worked out by US, European and Japanese Patent Offices in 2000, according to which all "computer-implemented" problem solutions are patentable inventions. Some members of the Parliament have proposed amendments which aim to uphold the stricter invention concept of the European Patent Convention, whereas others push for unlimited patentability according to the Trilateral Standard, albeit in a restrictive rhetorical clothing. We attempt a comparative analysis of all proposed amendments, so as to help decisionmakers recognise whether they are voting for real or fake limits on patentability.

Why Amazon One Click Shopping is Patentable under the Proposed EU Directive

According to the European Commission (CEC)'s Directive Proposal COM(2002)92 for "Patentability of Computer-Implemented Inventions" and the revised version approved by the European Parliament's Committee for Legal Affairs and the Internal Market (JURI), algorithms and business methods such as Amazon One Click Shopping are without doubt patentable subject matter. This is because

Any "computer-implemented" innovation is in principle considered to be a patentable "invention".
The additional requirement of "technical contribution in the inventive step" does not mean what most people think it means.
The directive proposal explicitly aims to codify the practise of the European Patent Office (EPO). The EPO has already granted thousands of patents on algorithms and business methods similar to Amazon One Click Shopping.
CEC and JURI have built in further loopholes so that, even if some provisions are amended by the European Parliament, unlimited patentability remains assured.

Program Claims: Bans on Publication of Patent Descriptions

Patent Claims to "computer program, characterised by that upon loading it into memory [ some process ] is executed", are called "program claims", "Beauregard claims", "In-re-Lowry-Claims", "program product claims", "text claims" or "information claims". Patents which contain these claims are sometimes called "text patents" or "information patents". Such patents no longer monopolise a physical object but a description of such an object. Whether this should be allowed is one of the controversial questions in the struggle about the proposed EU Software Patent Directive. We try to explain how this debate emerged and what is really at stake.

Interopérabilité et Brevet: Controverse au Parlement européen

Art 6 of the proposed software patent directive pretends to impose a limit on patent enforcement to safeguard interoperability. Art 6a, which was inserted by the European Parliament and approved by all three concerned committees, actually does impose a gentle but real limit. It says that filters for conversion from one format to another may always be used, regardless of patents. Unfortunately even this limit has provoked a furious backlash from corporate patent lawyers, seconded by large IT associations and governments (whose patent policy is usually formulated by corporate patent lawyers). After the summer pause of 2003, Arlene McCarthy MEP proposed an amendment to Art 6a which would render Art 6a meaningless. The movement against Art 6a was joined by Wuermeling (EPP), Manders (ELDR) as well as the governments of UK and US. Yet explanations as to what is wrong with the Interoperability Privilege remain very vague. We explain the meaning of Art 6a and the different amendments under discussion.

US Gov't Promoting Patent Extremism in the European Parliament

The "Mission of the United States of America to the European Union" in Brussels has sent a long paper "by the US", titled "U.S. Comments on the Draft European Parliament Amendments to the Proposed European Union Directive on the Patentability of Computer-Implemented Inventions" to numerous members of the European Parliament. "The US" warns that Europe might fall afoul of the TRIPs treaty if it passes the proposed directive as amended by the Parliament. In particular, "the US" believes that conversion between patented file formats should generally not be allowed without a license, and therefore demands deletion of Art 6a. Moreover "the US" cites the same BSA studies and the same reasoning as found in the European Commission's directive proposal, and warns that any failure to wholeheartedly endorse patentablity of software in the directive might "adversely impact certain sectors of the economy", because "copyright does not protect the functionality of the software, which is of significant value to the owner", and that lack of clarity in the concept of "technical contribution" would lead to a continued need for negotiations with the US in WIPO and other fora. This warning comes shortly after a similar letter to MEPs from the UK Government. It is part of a US Government "Action Plan" to "promote international harmonisation of substantive patent law" in order to "strengthen the rights of American intellectual property holders by making it easier to obtain international protection for their inventions". This plan has been promoted aggressively by top officials of the US Patent Office in international fora such as WIPO, WSIS and OECD as well as through bilateral negotiations.

英国政府、欧州議会において特許強加の極端路線を提唱

Le ministère des affaires étrangères du Royaume-Uni fait circuler un "compte-rendu aux MPE britanniques", dans lequel il enjoint aux membres du Parlement Européen britanniques de soutenir la position de Arlene McCarthy et de voter (1) contre toute tentative de définir ce qui est technique ou qui limite en quoi que ce soit ce qui est brevetable (2) contre l'article 6a qui permet l'écriture de convertisseurs lorsque les standards sont brevetés (3) pour l'article 5 de la JURI qui interdit la publication des descriptions d'inventions brevetées sur le Net. L'intervention du gouvernement survient alors que McCarthy a montré des signes de nervosité en voyant l'amenuisement du soutien de son parti. La déclaration du gouvernement peut être attribuée à l'Office des Brevets Britannique et son groupe de travail politique, essentiellement constitué d'avocats en brevets de grandes sociétés. Ce groupe a déterminé la politique de brevets logiciels du Royaume-Uni et largement aussi celle de l'Union Européenne ces dernières années.

Arlene McCarthy 2003/09/01: "The Myths - The Truth"

In response to the wave of protests against the proposed software patent directive COM(2002)92 2002/0047 in late August 2003, the European Parliament's rapporteur for this directive, Arlene McCarthy MEP, has published a "Factsheet" which attempts to explain that she has been a victim of a "misinformation campaign" and is in reality championning the protesters' cause. We republish the paper with comments here.

Pamphlets

Proposition de directive sur la protection de la propriété intellectuelle COM (2003) 46(01)

Also, a debate on the IP Enforcement Directive is scheduled for 03/09/11. This directive, in combination with modifications to the software patent directive pushed by its rapporteur Janelly Fourtou, would threaten anyone who publishes a program on the Internet with criminal prosecution. FFII is supporting experts who are staying in the Parliament and organising events in and around the Parliament.