JURI debates Software Patents -- Recording and Transcription
21st April 2005 -- The European Parliament's Legal Affairs Committee discussed Michel Rocard's proposed Report on the Software Patent Directive. The room was full of pro-patent lobbyists who made their preferences audible by sneering laughing, e.g. at Rocard. Many MEP//s echoed positions of these lobbyists, claiming that small companies need software patents or that the 1st reading amendments excluded much more than software. Few had the needed knowledge/courage to support the rapporteur's approach of basically reinstating 1st reading amendments so as to position the EP for effective exclusion of software patents.
The recording has been made with an integrated microphone, the room was full, many lobbyists from Big Industry were present (Mingorance, IBM, EICTA, UNICE, Ericsson, Volvo, etc...). The recording is in the original languages.
Total length (1hr 45):
00:00 fr Rocard
First part of the recording is an introduction by rapporteur Michel Rocard which is more or less the same as his introduction letter to JURI members.
- Only addition: comments on forces of nature - invented by a German court, and taken up in Polish and Swedish legislation
* 19m, X, es
22m de Lehne
- Be careful with IPR, Lisbon, ... The EPO needs enough leeway to make decisions;
- then reads aloud the letter of UNICE : the EP 1st reading will eliminate all patents in modern fields of technology ... everybody wants to protect SMEs without undermining the basis on which the industry was based.
28:26 en Crowley
- The commission does not propose anything new;
- this is not a battle btw big companies and small garage innovators, 92% of patents in US have been granted to !SMEs;
- what is not patentable now will not become patentable with this directive;
- interoperability does not mean that an inventor can be denied its IP rights;
- no interference with Trips;
- make sure that we find the good 1st reading am to incorporate back into text.
34:25 en Kauppi
- majority of EP wants status quo, no steps backwards to the 1970s to exclude all software elements from patentability ; also a small leftist minority that tries to challenge the patent system ; problem of interpretation : what could be the effects of the different articles under the different versions
- condemns the UNICE paper and lobbyists presenting EP 1st reading as the end of the world and threaten legislators
- the council has been especially generous with the amendments, weak in article, we cannot accept the CP as it is.
- concentrate on 5 key articles : 2-3-4-5-6 in those maybe some parts were the EP had gone too far should be changed from the 1st reading (too narrow def of industry ; data processing is not a field of technology ; article 6 maybe 1st reading goes too far- in the US this is possible but not optional, could be dropped, art 6 is the weakest point of the common position and interoperability is a key element, is a red line for EP)
- study effects on !SMEs
- the commission will publish a study on open source
- art 7/8/9 are acceptable
53:40 de Lichtenberger
Eva Lichtenberger (Greens, AT):
- council counts on us to improve the situation, as well as a number of national parliaments , the council has failed to take into account the EP am. as deserved.
- endorses what MR said : distinction between technical and software is essential ; we - we are regulating about a matter of market access, it is also a matter of competition : how many licences does one have to paybefore turns on a computer ?! it is also a matter of monopolies
- TRIPS : if we decide on the limit of patentability we have to decide for TRIPS it is also a question of scope of technical
- we have to think of the degree of protection that IP gives ; is copyright efficient ? does that protection go far ? IP has to be protected but prevent that key areas are taken away from the accessible know-how.
- we should not be driven along by companies saying that we are going back to the stone age
- the definition of implemented has to be addressed
- many persons agreed in public (even hard pro directive lobbyist) that sw should not be patented. The EP has to shut the back door.
- software should be profitable and is protected by copyright
Erika Mann (PSE, DE):
- EP needs to be flexible and should not retake all am from 1st reading
- the conflict is not between big and small companies but between industries and programmers. Programmers have invented the internet, they have developed FLOSS and they want to keep that freedom. The industry, big and small, want to apply the patent law. Lichenberger's mantra against monopolies : should remember that often think of Microsoft and that Microsoft, but Microsoft became big under copyright law
- !SMEs want patents to protect themselves against the big business; the FLOSS problem should be assessed but remember that IBM is an open source company. Open source and patents are not mutually exclusive, OS companies DO patent
- US case law is backtracking is not as radical as used to be
- does not mind the word natural forces but don't think that it does really prevent anything : for eg. in Japan they have it in the law but they patent business methods
- should drop mechanical forces
- stress good articles from the CP such as 7/8/9
01:04:16 de Berger
Maria Berger (PSE, AT):
- there is a consensus in the committee
- lobbyists are not helpful and misinterpret
- the document of the rapporteur is good
- it will leave the TRIP problem (?)
- we have more allies in council than usual
01:15:13 de Lechner
Kurt Lechner (PPE, DE / German):
- Patents can be used as a base for a loan; not copyright
- pure sw different from software-related inventions
- the Common Position can be improved
1:18:38 nl Manders
1:24:18 it Gargani
- Satisfied with this debate and agree with 90% of what others have said
- Convergence of views between JURI members
- "We are not here to do philosophy but to do legislation, but we have to conciliate 3 things: profitability of industry, respect of market competition, free flows of ideas."
- Thanks Lehne to have recall that "we are in the key point of building of knowledge society"
- "softwares are covered by copyright"
- Critics of approximations and violence in Unice's paper: Unice should have pushed forward his logic by asking clearly to "reform art. 52 EPC"
- Debunk compatibility with TRIPS
- Optimistic to find an agreement with Coucil on the basis that this directive is not about extending art. 52 EPC but about preserving status quo
- EU is secured against JPO-style drift concerning "forces of nature" due to complementarity between this directive and art 52 EPC, which clearly prevents software from patentability
- EP has to negotiate with Council as soon as now.
- There is an agreement not to slip to the US practice
- OK with Kauppi on interoperability
Copyright cannot be improved, with this directive, this is out of scope, what is on scope is to define clearly the limit of what is under copyright law and what is under patent law
- Excess from free software people, it is not question to question the right of industry to be profitable
- In this dossier those who defend the market are rather on the left
- Vote 20/06
- the Commission wants transparency
- The text of the rapporteur is excellent indeed main issues are art 2+6
- definitions : don't believe that this directive is the place where we should give an answer to the definition of technicality ; also because we should then ask ourselves what impact that could have on other domains such as chemistry ?!
- MR definition is too restrictive because it means that processes inside a machine/computer/car cannot be patented