NRC Handelsblad editorial: Europe shouldn't unnecessarily juridically encumber software

The NRC Handelsblad is one of the most influential Dutch newspapers. On Saturday 5 March 2005, they published an article on software patents quoting Jan Lohstroh (vice president patent department of Philips), Arend Lammertink (Vrijschrift/FFII NL) and Reinier Bakels (lawyer and law scholar). Additionally, they also published an editorial on the way the software patents directive is being treated by the legislative branches of the EU. Below, you can find an English translation of some quotes from the editorial. To read the full text (in Dutch), you have to be a paying subscriber.

Translation of selected quotes

It would be commendable if the European Commission would care more about the European citizens than about her own institutional rights. In the light of the referenda regarding the European constitution, it is curious that the European Commission stubbornly holds on to a draft directive which has been opposed by among others the German, Spanish and Dutch parliaments. Nonetheless, the Commission has rejected a request from the European Parliament to draft a new directive. In Brussels, an institutional power play is unfolding, which no longer can be understood by the concerned parties and which has nothing to do anymore with the case itself. [...] For large companies such as IBM, Microsoft or Philips, that is no problem. They have a mutual balance of power in terms of claims and lawyers, allowing them to neutralise each other's patents among themselves. But for small and medium-sized software developers, an overly broadly formulated directive can be fatal. The assurance from the Commission that trivial patents can be opposed is not reassuring. Opposition means employing expensive lawyers against companies which have plenty of money for juridical procedures. All parties agree that Europe may not 'juridify' as much as is done in America. The European Parliament only wants to allow patents on software which "controls the forces of nature". This excluded buying using a credit card and the electronic shopping cart. The European Commission and the European Council of Ministers have, advised by multinational corporations, scrapped the clear definition of the European Parliament and accepted a new, more vague proposal. [...] The Commission proposal is undesirable, because it does not clearly define what a software patent is and consequently leads to hollow claims and expensive juridical procedures. Last Thursday the Tweede Kamer (House of Commons, ed) unanimously adopted a motion requesting the Cabinet to reject the directive. Next Monday, the Underminister for Economic Affairs will have the opportunity to do so in the European Competitiveness Council in Brussels. The Commission must be induced to take into account the European Parliament, at least three national parliaments and the interests of small and medium-sized enterprises. Many studies, among which one from Deutsche Bank, conclude that software-'juridification' hampers innovation. A new directive is better than yet another round of amendments for a bad directive during deliberations among three European bodies. The Commission, which is not democratically elected, ought to respect the parliament.