2004-12-01 ES Speeches in the Spanish Senate on the Software Patent Situation

--> [ Senate 04-12-01 | Patent News ]

You find here english translations of the speech texts related to the inquiry on the state of play of the Council software patent directive between senator Guillot Miravet and the industry minister in the Spanish senate on 1st december 2004.

Page 46 of the pdf: http://www.senado.es/legis8/publicaciones/pdf/senado/ds/PS0023.PDF Page. 1064 of the role of sessions from December 1st, 2004,

FROM JORDI GUILLOT MIRAVET, OF THE PARLIAMENT GROUP ENTESA CATALANA DE PROGRÉS, ABOUT THE PLANS OF THE GOVERNMENT IN RELATION WITH THE SOFTWARE FREE OF PATENTS (670/000026).

Mister VICEPRESIDENT (Molas i Batllori): Interpellation of his Excellency mister Jordi Guillot, of the Parliament group Entesa Catalana de Progrés, about the government plans related to the software free of patents. Senator Guillot has the floor.

Mister GUILLOT MIRAVET: Thank you, mister president. Minister, although the European Patent Office forbids to patent computer programs, that are only logical algorithms, intellectual creations that remain under the protection , by now, of the copyright laws, the European Patent Office -a real problem in this case-- has been interpreting the law in a creative way in order to sidestep the prohibition. Until now, more than 30.000 software patents have been granted.

Instead of correcting this abuse, the European Commission wrote a directive proposal in which the introduction of software patentability in Europe is proposed. In its first reading, the European Parliament corrected the Commission project, making clear that only patents for technical inventions can be allowed.

In May 18th this year, the Competitiveness Council of the European Union approved a directive proposal about patents; it was approved with the vote against of Spain -I congratulate you-- and Italy, Belgium, Denmark and Austria abstained, so the necessary blocking minority was not achieved. With the new Treaty of Nice the qualified majority has been altered.

On the other hand, after May 18th, the parliaments of Holland and Germany pronounced against patents, correcting the affirmative vote of their ministers. These new intentions allow trying to block anew this initiative so harmful to the interest of the majority of Europeans.

There are two possible paths to follow, due to the fact that until now there is only a political agreement. The formal vote can only be made once the text is translated into the official languages. So, a second vote is a possibility to follow, even if until now it has never happened. If not, the second reading will be compulsory on the European Parliament.

Minister, the reason of this interpellation is to reassert our rejection to this directive project and, with the support of the Senate, commit the Government Spain to follow the necessary steps in order to achieve a wide front of countries that reject software patents, and to call also the Members of the European Parliament of our groups to work in the European Parliament in order to prevent a directive that brings a risk so high for technological innovation in Europe.

Allow me Minister, ladies and gentlemen Senator, to justify this rejection. To do so, I will use the solid and reasonable arguments of Hispalinux, the Asociación española de internautas, the unions, the association Caliu, consumer organizations and a long list of specialists, academics, computer scientists, etc. Why are software patents a problem and why are they not desirable? The temporary monopolies that patents create can be justified in other fields because they offer incentive to innovation that would not exist otherwise; however, the incentive in the software industry already exists, due to the nature of the market itself, that makes innovation absolutely necessary in order to compete, except when there is a monopoly. This is one of the most fundamental reasons why software patents are unnecessary and self-defeating.

On the other hand, the fact that programs themselves are information provokes lots of contradiction when trying to promote the spread of the invention but limiting its commercialization, that is the focus of patents themselves.

Finally, the distribution of knowledge in computer science means that patents burden creativity, because software is built combining lots of previous contributions. Legalization of patents about programs would result in great damage to the Information Society and to economics in general: European companies would lose competitiveness with respect to USA and Japan; they would be discriminated depending on whether their business plan is compatible or not with the licences fee and would force to accept much higher prices for less innovated and worst quality products.

Free software is incompatible, on the other hand, with software patents, because it does not control the number of distributed copies, because it facilitates the finding of patent violations due to the public availability of its source code, because it means building in a decentralized way and in work groups, and because it is more difficult to establish responsibilities and to evaluate the legal risks of multiple contributions.

Linux, which is probably the best known system based on free software, would disappear in the mim-term or would become marginalized if software patents would be approved, but, that's right, it would not be the only victim, because all of the computing market would enter in a legal mine field where technical progress would be replaced by lawsuits and creativity by monopolies.

Being computer science practically applied mathematics, a technique of accessing the contrary, could have very diverse applications, and one or little patents could manage to block an informatics branch. For big oligopoly companies that does not mean major problems because they can amass loads of patents and deal between them in order to avoid possible litigation; for little and medium companies the opposite is true, it would be difficult for them to overcome this situation.

On the other hand, computer science is a field with a strong natural tendency to monopolization. The network effects, the fact that the same program is more useful when used by more people than if it is used by fewer people; the problems with interoperability and incompatibility; the low costs of massive reproduction of programs; the difficulty of inspecting programs distributed only in binary format and without the source code; the cost of learning, and the velocity of the market, all that helps the creation of monopolies harmful to the consumer. Software patents would introduce even more monopolies, limited, that is right, to twenty years, but this limit is an eternity in informatics.

If the directive is approved, it would legalize the 30.000 software patents that the European Patent Office issued during these years. That would encourage to grant more, which would have important consequences. Innovation in the competence on informatics would be highly damaged. Personal liberties would be decreased by means of the control of computer expression and by the difficulty of developing creative activities on the computer field. The standards assuring compatibility between different types of products would be monopolised. The availability of network information would be forced to pay taxes, even for producers as for consumers. All this difficulties would provoke a brake on the information society.

The 30.000 illegal software patents which the industry can ignore nowadays would become valid at once. Copyrights in informatics, that are the basics for all software development done in Europe until now, would be weakened, because independent creations protected by copyright would be vulnerable.

The European informatics market would rest in the hands of major companies from USA or Japan, more accustomed to obtaining patents and that would monopolize the majority of patents granted by the European Patent Office. It would be a protecting measure, but that would protect foreign capital. It would produce a movement of capital from the informatics field to the patents intermediaries field and to the European Patent Office, and a movement of every economic field to these big companies from USA and Japan. Free Software would disappear or it would be marginalized, resulting on an important regression on the history of informatics, and also a cut in freedom and options to users.

Minister, for all these reasons, the same that expressed your Government on the Competitiveness Council of the European Union on May 18th, 2004, I believe it would be suitable that the Government of the nation reiterates, reaffirms its negative to this proposal of patenting software in Europe and tries to build, together with the rest of governments and of the European Parliament, a new majority that allows to block this directive.

Nothing more and thank you.

Mister VICEPRESIDENT (Molas i Batllori): Thank you, your Lordship. In order to respond to the interpellation, has the floor the minister of Industry, Tourism and Trade.

The MINISTER OF INDUSTRY, TOURISM AND TRADE (Montilla Aguilera): Thank you, mister president. Lords, before considering the position of the Government about the patentability of Free Software, allow me to make a little glimpse in order to try to be located in the matter we discuss.

The Patent Law in use establishes that new inventions that imply an inventive activity and are able to be an industry application are patentable. Because of that, the law collects a list, not exhaustive, of matters not considered inventions for being technical activities. In this list, there are the computer programs.

Free software particularly and programs in general are not susceptible of protection by the patent system, and there is no plan in the short,medium or long term to translate the protection of computer programs, regulated by the Copyright Law nowadays, to the Patent Law.

However, the present legal situation relating the protection of inventions made by computer [sic!(*)] is unsatisfactory also because its lack of clearness and law security. Although the legal requirements of patentibility imposed by different laws on the States of the European Union and by the Spanish Patent Office are similar, the jurisprudence and administrative practice of national patent offices vary quite a lot, as your Lordship said. The harmonization of the treatment done by the courts and the national patent offices of the member States to those patent applications on what, in order to apply the technical object whose protection is demanded, it is necessary the use of a computer, a computer network or any other programmable devise, is the objective of the project of directive about patentibility of inventions implemented on computers. This directive was presented by the Commission in February 2002 and submitted to the co decision procedure mentioned by your Lordship.

The Competitive Council, celebrated the past Mat 18th, achieved a political agreement about the common position of the Council related to this directive with some changes with regard to proposal by the Irish Presidency, it has to be pointed out. So, between others, it was included the express provision that a computer program as it can be a patentable invention and also that methods using computer programs expressed in source code, object code whatsoever other form are not patentable inventions if there are not different technical effects than the normal physical interaction between program and computer, net o programmable device on what this program is running.

The exclusion of economic activity methods of patentibility, mathematical methods and, in general, any methods whose execution or make on practise does not produce an invention or a technical contribution implies a clear separation of the practice in this matter of the USA Patent Office. In this country it is required that the inventions have utility, but in Europe the basic requirement that an invention should have is the technical issue.

However and although these modifications agreed at last moment, the Spanish delegation did not consider it enough to modify its position, because of some concepts remained unclear in the sense of what was proposed by the Parliament that would avoid a so extensive interpretation about what is suitable to patent. So, the text on the whole does not collect with the necessary clearness and roundness, neither offer sufficient guaranties to ensure that in any case patents will be granted exclusively to technical inventions.

On the other hand, we have to take in account that the directive proposal should collect the highest grade of possible social consensus due to its wide repercussion on the whole companies and other information technologies users, who your Lordship made reference. It is enough to quote, as an example, that some autonomous communities as Andalusia, Extremadura or Valencia have information society promotion programs in Open Source platforms. In the same way, one can stand aside that the text submitted to the Council does not reflect the general sense that derives of the results of the debates on the European Parliament and that of the large number of amendments approved by the Parliament only a few and we have to say that with little modifying force-- have been incorporated by the Council.

Because all that, Spain voted, as your Lordship said well, against the directive proposal. Delegations of Austria, Belgium and Italy abstained and as the blocking minority was not achieved, as your Lordship pointed out, it is pending of formal adoption of the common position on a later Minister Council. However, it is still possible that some delegation could modify the position taken in the Council of May. This modification, if it is done, would announce formally on a Coreper. If it happens, it would achieve a blocking minority, that are 90 votes, and it would not be possible to adopt the common position, having to return the text to discuss on work group. On the contrary, if the text is finally agreed, it will be transmitted to the Parliament for the start of the second lecture.

Would the result be one or the other, return the text to the work group of the Council or it is sent to the Parliament in second lecture, Spain will hold its position that the directive does not have as a result a widening of the field of the matters suitable to be a patentable invention. I mean, your Lordships, that the will of the Government is still that those inventions that were not patentable before approving the directive, lately, once the approved text will be in force, they remain excluded from the protection awarded by the patents right.

So finally, Spain will continue to defend that the patents granted protect inventions that effectively bury deep a significant contribution to the state of technique and allow in this way that the patent system do its real function of promoting innovation and the technological development besides being a valuable instrument for the spread of technical information.

Thank you very much.

Mister VICEPRESIDENT (Molas i Batllori): Thank you very much, minister. Has the floor senator Guillot.

Mister GUILLOT MIRAVET: Thank you, mister president, I will contribute from the seat.

Minister, I appreciate your clearness, I congratulate you for reaffirm the attitude of the Government against the widening of matters suitable to patent and I compromise myself on the subsequent motion to accomplish the consensus of this Chamber in order to try to support the attitude and the position of the Government.

Thank you, mister president.

Mister VICEPRESIDENT (Molas i Batllori): Thank you very much, mister senator. Do you want to contribute, minister? (Pause.) Thank you.

-- (*) Original Spanish text "invenciones realizadas por ordenador" which sounds more natural to some than "invenciones implementadas en ordenador". "implementadas" is an accepted Spanish word, but it is not very used outside specialised jargon. It sounds foreign to many (some Spanish MEP complained of the directive translation in the Spanish Senate in 2003). So I guess "realizadas" ("realised") tries to translate "implemented" in more "natural" Spanish. The problem is with the preposition "por" which is "by", but I think in this context "por" should be translated by "through". Anyway, how can you properly translate a phrase than in original English is already a contradiction in terms ?