[Lancaster] software patents again

[max]

(I realize some ppl may not be into this stuff, if you're not appreciating =
the=20
patenting stuff clogging up your mailbox then i suggest you send a message =
to=20
the list, and we can continue the discussion off list.)

here's a reply from an mep. usual bollox from elected representatives - "we=
'll=20
do what we want and ignore our electorate" type attitude.

if anyone feels like drafting an answer....

max

=2D----------------------------------------------------------

"Brian Simpson MEP" <briansimpson@lab.u-net.com>


Our Ref:BS/AF/SP

28th August 03


Dear Mr Hetzberg,

Thank you for your e-mail concerning the draft directive on the patentabili=
ty=20
of computer-implemented inventions.

The European Parliament's Legal Affairs Committee has voted on the=20
rapporteur's report on the directive and there will be continuing debate an=
d=20
further democratic scrutiny before the directive becomes law.

At this early stage of legislative process, it is nonetheless important to=
=20
establish the facts about what the draft EU directive and what the=20
Parliament's rapporteur are aiming to achieve in the amendments tabled to t=
he=20
Commission proposal.

It has been suggested that the Parliament's report will for the first time=
=20
allow the patentability of computer-implemented inventions. This is simply=
=20
not true. The patenting of computer-implemented inventions is not a new=20
phenomenon. Patents involving the use of software have been applied for and=
=20
granted since the earliest days of the European Patent Office (EPO). Out of=
=20
over 110,000 applications received at the EPO in 2001, 16,000 will have dea=
lt=20
with inventions in computer-implemented technologies. Indeed, even without =
an=20
EU directive, these patents will continue to be filed, not only to the EPO=
=20
but also to national patent offices.

As you will be aware, in the US and increasingly in Japan, patents have bee=
n=20
granted for what is essentially pure software. Some EPO and national court=
=20
rulings indicate that Europe may be drifting towards extending the scope of=
=20
patentability to inventions which would traditionally have not been=20
patentable, as well as pure business methods. It is clear that Europe needs=
 a=20
uniform legal approach which draws a line between what can and cannot be=20
patented, and prevents the drift towards the patentability of software per=
=20
se.

The rapporteur's intention is clear in the amendments tabled and in a new=20
Article 4 in the text, to preclude; the patentability of software as such;=
=20
the patentability of business methods; algorithms; and mathematical methods=
=2E=20
Article 4 clearly states that in order to be patentable, a=20
computer-implemented invention must be susceptible to industrial=20
applications, be new, and involve an inventive step. Moreover the rapporteu=
r=20
has added a requirement for a technical contribution in order to ensure tha=
t=20
the mere use of a computer does not lead to a patent being granted.

=46urthermore, the amended directive contains new provisions on decompilati=
on=20
that will assist software developers. While it is not possible to comment o=
n=20
whether any patent application would be excluded from the directive, the=20
directive, as amended, would not permit the patentability of Amazon's=20
'one-click' method. As far as software itself is concerned, it will not be=
=20
possible to patent a software product. Software itself will continue to be=
=20
able to be protected by copyright.

With an EU directive, legislators will have scrutiny over the EPO and natio=
nal=20
court's decisions. With, in addition, the possibility of having a definitiv=
e=20
ruling from the European Court in Luxembourg, thus ensuring a restrictive=20
interpretation of the EU directive and a greater degree of legal certainty =
in=20
the field of patentability of computer-implemented inventions.

Some concerns have been raised that the directive may have an adverse effec=
t=20
on the development of open source software and small software developers. =
=20
The rapporteur supports the development of open source software and welcome=
=20
the fact that the major open source companies are recording a 50% growth in=
=20
world-wide shipment of its products. =20

In the amended proposal, the rapporteur has imposed a requirement on the=20
Commission to monitor the impact of the directive, in particular its effect=
=20
on small and medium sized enterprises, and to look at any potential=20
difficulties in respect of the relationship between patent protection of=20
computer-implemented inventions and copyright protection.  Many small=20
companies have given their support to this directive, which will give them=
=20
more legal certainty as it offers the possibility of protection for their R=
&D=20
investment, and so assists in spin-off creation and technology transfer and=
=20
generating new funds for new investments.=20

Indeed recently, a small ten-person company in an economic black-spot in th=
e=20
UK granted a licence to a US multinational for its voice recognition softwa=
re=20
patents.  Without European patent protection in this field, the small compa=
ny=20
could have found itself in the perverse situation whereby its R&D efforts a=
nd=20
investment would simply have been taken by a large multinational company,=20
who, with its team of patent lawyers, would have filed a patent on this=20
invention. The EU company could have been faced subsequently with patent=20
infringement proceedings.

Some lobbyists would like us to believe that having no patents is an option=
 -=20
it is not. No patents would put EU software developers at a severe=20
disadvantage in the global market place, and would hand over the monopoly o=
n=20
patents to multinational companies.

The work the rapporteur has done is an honest attempt to approach this matt=
er=20
objectively, and to produce balanced legislation, taking into account the=20
needs and interests of all sectors of the software development industry and=
=20
small businesses in Europe.  No doubt there will be more debate and=20
refinements to the legislation before a final text is agreed under the EU=20
legislation process.

At a time when many of our traditional industries are migrating to Asia and=
=20
when Europe needs increasingly to rely on its inventiveness to reap rewards=
,=20
it is important to have the option of the revenue secured by patents and th=
e=20
licensing out of computer-implemented technologies.  Software development i=
s=20
a major European industry. In 1998 alone the value of the EU software marke=
t=20
was =E2=82=AC39 billion. Most of this will be protected by copyright, but g=
enuine=20
computer-implemented inventions must have the possibility, for the future o=
f=20
competitiveness of our industry, to have patent protection.


Yours sincerely


Brian Simpson MEP