McCreevy hearing this Tue 8th March on the Software Patent and Service Directives

Streaming of the debate | Reactions to his speech

Questions to Mr McCreevy on the Software Patent Directive

Questions about the requests for discussion (B-item)

These questions are essentially the same question so you can pick one:

• Yesterday, three countries requested a B-item in Council. The Presidency argued it was not possible to have a B-item, due to formal reasons ("The are some procedures to follow"). Which article of the Council Rules of Procedure prevents a political agreement being rediscussed? If there is no such article, can we consider that the Presidency has misguided Council Members on the B-item faisability?
• The presidency refused yesterday to request a vote on the B-item request, and has not asked publicly which country was in favour or not of having a vote on the question: "who is for having a B-item in our council?". Why the presidency has not taken the initiative to request a vote on the B-item initiative?
• Quoting the Luxembourg Presidency: "Je sais que certains membres, dans ceux que j'ai cité, le Danemark, la Pologne, le Portugal, auraient voulu que le point que nous traitons fasse l'objet d'une discussion comme point B dans notre conseil. Je n'ai pas pu l'accepter, vous me direz c'est un mauvais départ pour une présidence, mais il y a des procédures à respecter." In english: "I know a number of members, including those that I mentioned - Denmark, Poland, Portugal would have prefered the point with which we are dealing here to be the subject of a B-point discussion. As a Council, I was not able to accept that, you may tell me this is not a good start for a Presidency, but there are procedures that we have to respect,...". Can you give the article of the Council Rules Of Procedure that was used to say that a political agreement cannot be reopened? What is exactly the procedure Mr Kreke has mentioned yesterday?

Questions about the content of the directive:

• according to the council press release (http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/misc/84021.pdf) it is said that

  • In accordance with the European Patent Convention, a computer program as such cannot constitute a patentable invention.

but on the next paragraph it is stated that:

• The Council has introduced a new provision in order to clarify that in certain circumstances and under strict conditions a patent can cover a claim to a computer program, be it on its own or on a carrier.

Could you please explain 1.) what the "new provision" exactly is, 2) When this was introduced (on 2005-07-03, 2004-05-18?) 3) how software can both be not patentable and patentable? 4) What exactly are the strict conditions? 4)What is the effect on the already granted 30.000 Softwarepatents?

• What do you think about the reproach that this directive a de facto deletion 52.2(c) EPC? -> McCreevy is likely to deny/evade this -> Are you aware that the EPO in a letter to the Japanese letter on the further technical effect wrote that this construction only exists to achieve the circumvention of 52.2(c). After the deletion that can be omitted. It is not to be used by the examiners (in practice any invention has a further technical effect). It is only existing to satisfy 52.2 EPC.

• During a hearing conducted by the Polish Government in November 2004, all representatives of the Polish Patent Office, Microsoft, HP, SUN, and representatives of the industry confirmed that the 18th May text allows patents on pure software. Do you agree with their conclusion?
• A study on the impact of software patents has been awarded recently by the DG INFSO to the MERIT Institute. Why there was no impact study made before the introduction of the Commission proposal? Is it serious to put the whole sector at risk without first having an impact study?
  • there were impact studies.
• Companies whith huge patent portfolios secure their freedom to move by negotiating cross-licencing agreements with other companies which have huge patent portfolios. SME which typically cannot compete on such scale cannot do this. Doesn't create this a possible distortion of the market which could lead to parket failure ultimatively?

Questions about impact and insurance costs/market risk

• The Munich city wanted to switch to Open Source software for their software infrastructure. The municipality ordered a legal survey which concludes that software providers should have patent insurance, which is too expensive and only available for big players. Such requirements forbids SMEs to have access to public markets. Do you agree with that conclusion?
• 75% of software patents granted by the European Patent Office (EPO) are owned by American or Japanese companies. Furthermore, another percentage is owned by big European players, such as Nokia or Siemens. (1) Why do you want to legalise such barriers of entry in the market for European SMEs? (2) Do you think those 75% is a threat for Europeans software SMEs?
• Why has the Commission ignored the uncertainty and liabilities created by software patents? Given the report for DG Markt on Patent Litigation Insurance (CJS Consultants), why is the Commission not investigating insurance for SMEs facing patent litigation?
• Ireland is an attractive country for software licencing business. Can you explain why is it compared to other countries?
  • related?

• Big American software compagnies contribute significatively to the corporate tax in Ireland. Can you give an idea of their contribution to the total corporate tax in Ireland? Rumors says that Microsoft Ireland contributes up to 10% of this sum, is it true (they said on their website http://www.microsoft.com/ireland/aboutus/ that they contributed around 5% in 2000)? Can you give a number?

  • related?