-> [ deutsch | français ] [ Council vs EP | Urgent Appeal | Patent News ]
FFII proposes a sequence of basic steps need to be undertaken if the European Software Patent Directive is to get anywhere. The most basic ones consist in reverting some deteriorations that were introduced by the Council's Patent Policy Working Group during the last weeks and months before the Political Agreement of 2004-05-18 and that turn this version of the directive into the most uncompromisingly pro-software-patent version that has ever been seen during the 10 years of the directive-formulation process.
Current situation
The processes in the Council and Commission are dominated by people from the patent institutions who are prepared to kill the directive project. They now see it as very unlikely that they can obtain a rubber stamp from the European Parliament for a directive that allows their network (national patent administrations, administrative council of the EPO, Industrial Property Unit of the Commission, patent departments of large corporations) to go on setting the rules as they please. In that case they prefer to drive the project against the wall. Above all, they fear being faced with discussions.
They have almost succeded in driving the directive against the wall by means of a Political Agreement on a Common Position of the Commission and Council, reached on 2004-05-18 by an (un)qualified majority. During nearly a year of delay due to resistance in member states, the Council managed to avoid discussions on substance. Finally it resorted to violations of procedural rules in order to declare its Uncommon Position adopted.
It would now be appropriate for the European Parliament to do what the Council and Commission are implicitely asking it to do: end the directive project. The alternative would be to reinstate the position of September 2003 and continue the fight, hoping to loosen the grip of the patent institutions on the member state governments and the European Commission.
Those member states who want to address the issues constructively will have to distance themselves from the deception and discussion-sabotaging tricks of their patent officials and start to open up for discussion, step by step, in the following order.
Steps out of the Council Deadlock
Delete "magical" wordings, such as "either as source code or object code", that were inserted by Bolkestein into Art 4A in the last minute. Reason: Nobody wants patents on individual expressions or singular instances of programs. These insertions serve no regulatory purpose but rather impose an interpretation on Art 52 EPC which makes the law meaningless and, probably for that reason, is rejected by the German Federal Court and even by the EPO. Delete such wordings also from recitals where they occur. The directive should not reinterpret the EPC in a way that does not conform to the normal rules of interpretation of law.
- Delete Article 5(2). Reason: The double negations are deceptive. This article makes software on its own patentable. It is a fundamental principle of patentlaw that "what is claimed must be what was invented". If a "program, characterised by ..." is claimed, then nothing more than a program (as such) was invented. If an information structure can be a patentable invention, then there is no point in defining "technical" anymore. Even the European Commission refused program claims in its proposal of 2002. Putting them back in in 2003 was little more than a signal of unconstructiveness.
- Delete recital 17. This recital says that a right to interoperate can be secured only through antitrust procedings. This again removes room for negotiations and represents a deterioration of the directive in comparison to the Commission's version of 2002.
- Define "technology" as "applied natural science" and "technical invention" as "solution of a problem by forces of nature" or similar, as (insincerely) proposed also by the German delegation in its maneuver of May 2005. The !TRIPs treaty compels us to define these terms.
- Support Article 6a (interoperability privilege). This provision has received the support of all three committees of the European Parliament and the Plenary as well as the nearly the whole software industry, including large companies such as Sun Microsystems which normally let their patent departments formulate patent policies on their behalf.
Discuss the other amendments of the European Parliament and give national parliaments a chance to participate in the discussion. Take the letter and spirit of the Amsterdam protocol seriously.