European Parliament divided on software patents vote next week

European Parliament divided on software patents vote next week 

The European Parliament Legal Affairs and Internal Market (JURI)[1]
committee voted last tuesday on the software patents directive
COM(2002)92 [2].  The committee passed the rapporteur's draft with some
modifications.  The resulting report[3] shows the opposing views in the
committee. One third of the members opposed to the report, and only 3
amendments from the opinions of the Industry[4] and Culture[5] committees 
passed (2 of them despite the opposition of the rapporteur). 

The result of the vote was found to be contradictory[13], and as British
Andrew Duff MEP (Liberals, ELDR) wrote[6], contrary to available
opinions:

   "While I see the value of harmonising European standards, in its
   current form the Software Patentability Directive proposed by the
   European Commission unquestionably seeks to widen the patentability
   criteria laid down in 1972.  As you are probably aware, both the
   Economic and Social Council of the European Union and the German
   Monopoly Commission have strongly criticised the Directive, as have
   Liberal Democrats in this country. The Research Directorate of the
   European Parliament also produced a study that is critical of the
   attempt to construct a regime that does not explicitly limit the
   extent of patentability. It seems that we are on the verge of adopting
   a patenting regime modelled on that of the United States, at the very
   moment when critics in that country have begun to be forceful and
   articulate in condemning it. Regardless of the conclusions of the JURI
   Committee, along with my Liberal Democrat peers I will be working to
   amend the Directive as it stands."

Catalan Miquel Mayol i Raynal (ERC, in EFA/Greens) MEP lamented[7]
"that small and medium enterprises are being ignored, being them that
generate most employment in Europe, and that a petition with over
140000 signatures and another with 30 of the most leading European
computer scientists is disregarded". For him "blocking competition and
free creativity in software is not good for consumers or cultural
diversity, and it is a serious problem for the European economic
fabric".

While claiming to restrict patentability and clarify the law without
changing it, by requiring a "technical contribution", the comittee
failed to approve the amendments (passed in other committees, and presented
in JURI too by MEPs from PSE, EFA/Greens and GUE/NGL ) defining
the meaning of "technical".[8] Finnish Piia Noora Kauppi MEP (KK, in PPE) 
also endorsed these amendments after declaring in a panel[9] at the 
Dorint hotel in Brussels, May 7th 2003 that the European Patent Office
"has been running wild". Catalan Carles-Alfred Gasòliba i Böhm MEP
(CiU, in ELDR) adhered to the necessity for these delimiting
amendments:

   "Patents for material apparatus and processes represent an incentive for
   research and development of new technical solutions which otherwise
   would not be profitable to invent but would be profitable to produce
   from someone else's research, without spending on laboratories,
   prototypes and experiments. Intellectual activities such as programming
   do not need this expense in empirical research. Instead, the expensive
   part is composing many rules and procedures in a coherent solution,
   effort which is already covered by copyright."

   "Therefore these two kinds of innovations must be separated, so that
   patents are granted only for new uses of controllable forces of nature,
   and not for data processing. Other amendments that should pass would
   be those ensuring interoperability, and that use and distribution of software
   is covered by copyright, not by patents."

The JURI report even allowed claims to programs on its own, on media
or signal (patents forbiding publication or distribution of software,
not only its use or inclusion in devices), despite the European Patent
Convention stating that programs for computers are not inventions and
therefore not patentable as such[10]. Bernhard Kaindl, developer at SuSE
Linux AG was worried about this decision[11]:

   "Leading JURI committee members are not satisfied with putting the
   software industry at risk. They also want to make sure that every
   programmer will run afoul of patents as soon as he publishes a program
   on the web. While CULT and ITRE introduced safeguards for the freedom
   of publication, Arlene McCarthy is flatly ignoring these safeguards
   and instead recommending "compromise amendment 1", which makes
   publication a direct infringment. It seems almost entrepreneurially
   irresponsible to go on selling Linux distributions under these
   conditions. If one of thousands of programs in our distribution
   infringes on one of tens of thousands of broad and trivial software
   patents granted by the EPO, we can be sued and forced to take our CDs
   from the market. [...] At a moment where public administrations are
   introducing free/opensource operating systems or using them to
   pressure Microsoft into price reductions, Arlene McCarthy and her
   allies seem to be joining Microsoft in its crusade to suppress free
   software. [...] Arlene McCarthy herself has openly attacked the GNU
   General Public License as "just another form of monopolism". McCarthy
   and her ally Dr. Joachim Würmeling have declined all invitations for
   dialog from our side and refused to reply to our questions. They are
   of course not obliged to talk to us. However, strengthening monopolies
   by handcuffing competitors is about the worst thing a government can
   do against itself."
	

The CEC and JURI rapporteur lack of clarity was already criticized by
Reinier Bakels, one of the experts appointed by the JURI committee
itself for a report[12], at a conference on May 8th 2003 in the European
Parliament[9]. The rapporteur was asked to test her rules on given
examples[14] offered in an attempt at debate[15], but declined.

Dr. Bernhard Runge, SAP's senior developer, does not need the test[11]:

   "SAP has grown big by copyright, and being imitated was never seen as
   a major problem. We do not need protection by patents but rather
   protection from patents. SAP had to pay exorbitant extortion sums to
   some individual patent owners (among them professors from well known
   US-universities) with high criminal energy."  

   [...]  

   "Our patent lawyers have meanwhile persuaded some people in the
   management that the EU directive is a good idea, because it would allow
   us to play the software patent game in Europe as well. But I think
   they are wrong and their thinking will not prevail in the company."

   "Contrary to what some of the directive's proponents say in public,
   this directive make algorithms and business methods patentable. How
   could it be otherwise? What else can there be to patent in our
   software, if not algorithms and business methods?"

Given comments after the JURI vote published in an EFA/Greens press
release[17], like those of their copresident, Dany Cohn-Bendit MEP:

    "This patent report is an insult even to the principle of free
   trade. Pretending to protect inventors and their inventions, it
   instead allows multinationals to lock up the market."

there is ground for doubt on the chances for the report to pass 
the vote in plenary next monday June 30th 2003 [16] unamended. 


References

[1] JURI Committee    
http://www.europarl.eu.int/committees/juri_home.htm

[2] Directive proposal from the European Commission  
http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf

[3] JURI report available from FFII : 
http://swpat.ffii.org/news/03/juri0617/juri030617.pdf
    The official URL should be at   
http://www2.europarl.eu.int/omk/OM-Europarl?PROG=REPORT&L=EN&REF_A=A5-2003-0238&F_REF_A=A5-0238/03
    an appraisal 
http://patents.caliu.info/juri.en.html

[4] European Parliament ITRE committee opinion  
http://www.europarl.eu.int/meetdocs/committees/juri/20030317/490455en.pdf

[5] European Parliament Culture Committee opinion  
http://www.europarl.eu.int/meetdocs/committees/juri/20030219/487019en.pdf

[6] Andrew Duff MEP on software patents
http://www.timj.co.uk/digiculture/patents/2003-06-03_Duff.php

[7] Miquel Mayol i Raynal MEP note,  translated from Catalan
http://esquerra.org/article.php?id_article=1788&mes_info=1

[8] Amendments from other members of JURI (besides the rapporteur)  
http://www.europarl.eu.int/meetdocs/committees/juri/20030422/495297en.pdf
Analysis of the amendmends considered in JURI
http://swpat.ffii.org/papers/eubsa-swpat0202/juri0304/juri0304.en.pdf

[9] On the events in Brussels, May 7th and 8th 2003

program
http://www.greens-efa.org/fr/agenda/detail.php?id=998&lg=fr
http://swpat.ffii.org/events/2003/europarl/04/index.en.html

articles

http://www.5dias.com/articulo.htmlxref=20030510cdscnrpor_8&type=Tes&anch
or=cdscnrpor&d_date=20030510
http://www.temps-reels.net/article.php3?id_article=1358
http://www.transfert.net/a8780

photos

http://www.foo.be/gal/
http://photos.vandewege.net/photos.cgi?lib=2003&set=200305swpat
http://bh.udev.org/filez/photos/ManifAgainstPatents8may/
http://oumph.free.fr/brevets/

[10] European Patent Convention (see Art 52)
http://www.european-patent-office.org/legal/epc/

[11] Statements collected by FFII
 http://swpat.ffii.org/news/03/juri0617/index.en.html

[12] On the Bakels & Hugenholtz report for the JURI committee
http://patents.caliu.info/dgiv.html

[13] About the JURI Report
http://patents.caliu.info/juri.en.html

[14] Message invinting the rapporteur to assess her criteria 
on real life examples
http://www.aful.org/wws/arc/patents/2003-06/msg00047.html

[15] Account of failed attempts at debate with the rapporteur
http://slashdot.org/comments.pl?sid=67563&cid=6201894

[16] Directive procedure page
http://wwwdb.europarl.eu.int/oeil/oeil_ViewDNL.ProcedureView?lang=2&procid=5974
Plenary agenda, 2003.6.30
http://www3.europarl.eu.int/ap-cgi/chargeur.pl?APP=IRIS+PRG=REPRIEF+FILE=REPRIEF+SESSION=JUL|03+DAY=1+SES=ALL+LG=FR+BACK=NONE

[17] EFA/Greens press release
http://www.greens-efa.org/en/press/detail.php?id=1445&lg=en



-- 
Xavi Drudis Ferran
http://patents.caliu.info
xdrudis@tinet.org