2004-09-29 Response from Lord Sainsbury to Michael Foster MP

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I, Alex Bradbury, received this letter from Lord Sainsbury on 2004-09-06 in response to the Urgent Appeal I sent to Michael Foster MP, who passed on my concerns to Lord Sainsbury. It is dated 2004-09-29. Here it is:

Dear Michael line is handwritten

Correspondence from A S Bradbury, address: Software Patents

Thank you for your letter of 13 September raising Mr Bradbury's concerns regarding the patenting of computer-implemented inventions.

The aim of the directive continues to be to clarify the current law as interpreted by the Courts and elsewhere in the Member States. Our position in arguing and supporting the directive has been to ensure that it should achieve the aims of clarifying the law and not extend or restrict the patentability of software. Consquently, there is nothing in the directive that will lead to the total, unlimited patenting of software. Firstly, the directive is limited only to computer implemented inventions; and secondly the directive makes it clear, through the provisions agreed by the ministers, that even then, such inventions can only be patented if they make a technical contribution, a point which has already been affirmed by the courts.

Mr Bradbury's suggestion that the directive will stifle innovation is mistaken. Not only does the proposed directive set out the present legal position as it applies in the UK and elsewhere in Europe, but it also represents an element of the patent system that is being used extensively and effectively by many small medium-sized enterprises (SME's). Furthermore, there is no evidence that the present system is causing any harm to the economy at large. The only significant problem with the present system is that it is complex, and as a result many people do not understand what can and cannot be protected by patents. In fact, we hope that a directive that succeeds in clarifying the law would reduce complexity - and therefore the costs - of the patent system for such businesses.

I assure you that there was nothing improper about the way in which the Council of Ministers reached agreement on the text of the directive on 18 May. The text had been discussed in Brussels at length, and in considerable detail, by experts from each of the Member States of the European Union. My officials from the Patent Office attended these meetings and they have worked to ensure that the text considered and ultimately agreed by the Council is entirely in line with the policy of the UK government. My view, and that of my colleagues in government, was only formed after considering the results of a public consultation excercise that was carried out in the autumn of 2000. The consultation excercise showed that there were arguments on both sides, and a clear need to clarify the existing legal position; but there was no obvious case for changing the law.

The Computer Implemented Inventions directive is being handled under the "co-decision" procedure which involves discussion first by the European Parliament and then by the Council on the basis of a proposal made by the European Commission. It is rare for agreement to be reached on any legislation at first reading ,which means that the Parliament routinely has two stage involvement in the process. In this case, the Council found it was unable to accept some of the amendments made to the text by the Parliament at its first reading, and so the text as further amended by the Council will shortly be passed back to the Parliament, which can then decide whether to proceed with the directive as it now stands, or to make further amendments. If at this stage it is not possible to reach agreement between the Parliament and the Council, the directive enters a procedure known as "conciliation". All these stages are set out in the Treaty establishing the European Community.

I trust you will see from this explanation that there is nothing unusual or improper about the way this proposed directive is being handled.

Best wishes, line is handwritten as David followed by a funny squiggle