Tory MEPs back Council Software Patent Agreement

1st March 2005 -- In a response to software developper Ricardo Gladwell, UK Tory MEP Charles Tannock forwards a new statement from Malcolm Harbour, the Tory group's shadow rapporteur on the software patents directive, which supports the Council's text and claims that this text excludes software and algorithms from patentability.

Evaluation

Malcolm Harbour's rhetoric has developped. Harbour is now, even more than before, emphasizing that his intention is to exclude software, algorithms, business methods etc from patentability. The assertion that this is achieved by the Council's text and that this text represents an improvement is however becoming less tenable than ever before, especially given that a study ordered by one of the Parliament's own services has now clearly demonstrated this is not true.

Harbour pretends to be attempting a balance between exclusion of pure software and a second goal, namely maintaining the "legitimate protection afforded to other categories of inventions where software produces a genuine technical effect". He however supplies no examples of such "legitimate protection", nor any examples of patented software that does not "produce a genuine technical effect". In effect, Harbour is not working toward a balance but toward unlimited patentability and unfettered patent enforcement.

The Harbour Text

Dear Mr Gladwell,

Thank you very much for your email. Please find below official statement from our Internal Market Spokesman Mr Malcolm Harbour on this issue:

Reply - Software Patents and IP

Thank you for your letter regarding your concerns over the proposed EU legislation that lays down the rules for the patentability of computer implemented inventions.

Conservatives have consistently supported the need for the European Union to have a clear patent regime that excludes computer software and business methods from patentability. This will reinforce the EU's competitive position and give us a different regime from the US and Japan. Doing nothing is not an option. European Patent Offices are already dealing with applications for patents involving software in different ways in different countries. Without a clarifying Directive there could well be a drift towards a US style regime.

The proposed Directive on Computer Implemented Inventions is intended to bring this about. It does not extend existing EU patent law into any new areas. It is intended to give patent inspectors an unambiguous legal framework within which they can make judgements on the patentability of inventions containing computer software. It will give them secure legal grounds for refusing a patent for an invention involving pure software, algorithms, or business methods, which can be sustained if later challenged in court. The draft Directive has no bearing on open source software, a point of great concern to many software professionals. It also seeks to close an existing loophole that has allowed some ineligible software concepts to be granted patents in Europe already.

The Directive has been controversial. The details are critical, which is why there has been so much argument about them. The clarifying text must be broad enough to ensure that pure software and business methods are effectively excluded. At the same time, it must not be so all embracing that it damages the legitimate protection afforded to other categories of inventions where software produces a genuine technical effect.

Conservatives have been keen to ensure that the interests of all parties are taken into account and that a workable and effective proposal is agreed. Conservative MEPs, at the First Reading in the European Parliament, supported many clarifying amendments. An extensively revised text has now been presented for Second Reading. In our view, it is a significant improvement over the original and makes it absolutely clear that a "computer program, as such, cannot constitute a patentable invention" to quote the new text. It also states that "inventions involving computer programs, whether expressed as source code, as object code or in any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable".

Based on our initial evaluation, we do not feel that the Directive needs major amendments. Any extension of the scope of patentability could render it unworkable and make it incompatible with national patent law. We want a Directive that will effectively safeguard the European economy against patents on pure software and business methods, while preserving a balanced patent regime that will protect innovators and encourage innovation.

Best wishes

Dr Silvia Janicinova PA

Office of Dr. Charles Tannock MEP European Parliament ASP 14 E 101 Rue Wiertz B-1047 Brussels Belgium Tel: +32 2 2845870 Fax: +32 2 2849870 ctannock at europarl.eu.int www.charlestannock.com

Original message sent by Ricardo Gladwell

Tuesday 01 March 2005

Dear Charles Tannock,

I am writing to you concerning the proposed 'Directive on the patentability of computer-implemented inventions' - or software patents. As you may know, software is not normally covered by patents. However, the proposed directive will extend patent protection to cover fundamental concepts such as algorithms and logic.

As a software engineer myself and a member of your EU constituency, I'm deeply concerned about the problems that software patents would bring to my work and the software industry in general. I was also more concerned to discover that, despite the fact the EU Parliament has voted to exclude software patents from the proposed Directive, the Commission and Council have ignored the Parliament's proposal and reinstated the most uncompromisingly pro-patent text.

Software patents are dangerous for software engineers and bad for the software industry for a variety of reasons. Not only do the make the process of developing software into a legal minefield, they also stifle innovation and industry and drive up the costs of software development. Not only does this affect software developers, by driving up the costs of software it also drives up the costs of various goods that contain software such as mobile phones and even washing machines.

I would be interested to know your thoughts on the above directive and its consequences. Do you have a copy of the Council working documents on this topic? Does your party and our government have a stance on the issue of software patents and, if so, what position do they hold?

I look forward to receiving your reply. Yours sincerely,

Ricardo Gladwell