The European Parliament Legal Affairs and Internal Market (JURI) committee voted last tuesday on the software patents directive COM(2002)92. The committee passed the rapporteur's draft with some modifications. The resulting report shows the opposing views in the committee. One third of the members opposed to the report, and only 3 amendments from the opinions of the Industry and Culture committees passed (2 of them despite the opposition of the rapporteur).
The result of the vote was found to be contradictory, and as British Andrew Duff MEP (Cambridge, UK, Liberals, ELDR) wrote, contrary to available opinions:
While I see the value of harmonising European standards, in its current form the Software Patentability Directive proposed by the European Commission unquestionably seeks to widen the patentability criteria laid down in 1972. As you are probably aware, both the Economic and Social Council of the European Union and the German Monopoly Commission
have strongly criticised the Directive, as have Liberal Democrats in this country
. The Research Directorate of the European Parliament also produced a study
that is critical of the attempt to construct a regime that does not explicitly limit the extent of patentability. It seems that we are on the verge of adopting a patenting regime modelled on that of the United States, at the very moment when critics in that country have begun to be forceful and articulate in condemning it. Regardless of the conclusions of the JURI Committee, along with my Liberal Democrat peers I will be working to amend the Directive as it stands.
Miquel Mayol i Raynal (Regionalist, Perpinyà, Spain) MEP lamented "that small and medium enterprises are being ignored, being them that generate most employment in Europe, and that a petition with over 140000 signatures and another with 30 of the most leading European computer scientists is disregarded". For him "blocking competition and free creativity in software is not good for consumers or cultural diversity, and it is a serious problem for the European economic fabric."
While claiming to restrict patentability and clarify the law without changing it, the comittee rejected all amendments (passed in other committees, and presented in JURI too by MEPs from PSE, EFA/Greens and GUE/NGL) which would have defined the meaning of key terms such as "technical" and "invention". Piia-Noora Kauppi MEP (Conservative, Finland) also endorsed these amendments after declaring in a panel at the Dorint hotel in Brussels, May 7th 2003 that the European Patent Office "has been running wild". Carles-Alfred Gasòliba i Böhm MEP (Liberal, Spain) stresses the necessity of these delimiting amendments:
Patents for material apparatus and processes represent an incentive for research and development of new technical solutions which otherwise would not be profitable to invent but would be profitable to produce from someone else's research, without spending on laboratories, prototypes and experiments. Intellectual activities such as programming do not need this expense in empirical research. Instead, the expensive part is composing many rules and procedures in a coherent solution, effort which is already covered by copyright.
Therefore these two kinds of innovations must be separated, so that patents are granted only for new uses of controllable forces of nature, and not for data processing. Other amendments that should pass would be those ensuring interoperability, and that use and distribution of software is covered by copyright, not by patents.
The JURI report even allowed claims to programs on its own, on media or signal (patents forbiding publication or distribution of software, not only its use or inclusion in devices), despite the European Patent Convention stating that programs for computers are not inventions and therefore not patentable as such. Bernhard Kaindl, developer at SuSE Linux AG was worried about this decision:
Leading JURI committee members are not satisfied with putting the software industry at risk. They also want to make sure that every programmer will run afoul of patents as soon as he publishes a program on the web. While CULT and ITRE introduced safeguards for the freedom of publication, Arlene McCarthy is flatly ignoring these safeguards and instead recommending "compromise amendment 1", which makes publication a direct infringment. It seems almost entrepreneurially irresponsible to go on selling Linux distributions under these conditions. If one of thousands of programs in our distribution infringes on one of tens of thousands of broad and trivial software patents granted by the EPO, we can be sued and forced to take our CDs from the market. [...] At a moment where public administrations are introducing free/opensource operating systems or using them to pressure Microsoft into price reductions, Arlene McCarthy and her allies seem to be joining Microsoft in its crusade to suppress free software. [...] Arlene McCarthy herself has openly attacked the GNU General Public License as "just another form of monopolism". McCarthy and her ally Dr. Joachim Wuermeling have declined all invitations for dialog from our side and refused to reply to our questions. They are of course not obliged to talk to us. However, strengthening monopolies by handcuffing competitors is about the worst thing a government can do against itself.
The lack of clarity was already criticized by Reinier Bakels, one of the experts appointed by the JURI committee itself for a report, at a conference on May 8th 2003 in the European Parliament. The rapporteur was asked to test her rules on given examples offered in an attempt at debate, but declined.
SAP developer Dr. Bernhard Runge does not need the test:
SAP has grown big by copyright, and being imitated was never seen as a major problem. We do not need protection by patents but rather protection from patents. SAP had to pay exorbitant extortion sums to some individual patent owners (among them professors from well known US-universities) with high criminal energy.
Our patent lawyers have meanwhile persuaded some people in the management that the EU directive is a good idea, because it would allow us to play the software patent game in Europe as well. But I think they are wrong and their thinking will not prevail in the company.
Contrary to what some of the directive's proponents say in public, this directive make algorithms and business methods patentable. How could it be otherwise? What else can there be to patent in our software, if not algorithms and business methods?
The Greens/EFA called the JURI decsions "disastrous" in their press release and cite their co-president Daniel Cohn-Bendit:
This patent report is an insult even to the principle of free trade. Pretending to protect inventors and their inventions, it instead allows multinationals to lock up the market.
Given these strong concerns in all political camps, there is ground for doubt on the chances for the report to pass the plenary next week.
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