European software patent vote delayed

Posted Sep 4, 2003 3:24 UTC (Thu) by stock (subscriber, #5849) [Link]

Date: Wed, 3 Sep 2003 12:39:17 +0100 (BST)
From: Arlene McCarthy <arlenemccarthymep@yahoo.co.uk>
To: stock@stokkie.net
Subject: Response to your correspondence regarding the draft EU directive
on patentability of computer-implemented inventions.
Parts/Attachments:
1 OK 96 lines Text
2 Shown 51 lines Text
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Dear Robert M. Stockmann,

Thank you for your correspondence concerning the draft directive on the
patentability of computer-implemented inventions.

The European Parliament's Legal Affairs Committee has voted on my report
on the directive and there will be continuing debate and further
democratic scrutiny before the directive becomes law.

At this early stage of legislative process, it is nonetheless important
to establish the facts about what the draft EU directive and what I, as
the Parliament's rapporteur, are aiming to achieve in the amendments
tabled to the Commission proposal.

It has been suggested that the Parliament's report will for the first
time allow the patentability of computer-implemented inventions. This is
simply not true. The patenting of computer-implemented inventions is not
a new phenomenon. Patents involving the use of software have been applied
for and granted since the earliest days of the European Patent Office
(EPO). Out of over 110,000 applications received at the EPO in 2001,
16,000 will have dealt with inventions in computer-implemented
technologies. Indeed, even without an EU directive, these patents will
continue to be filed, not only to the EPO but also to national patent
offices.

As you will be aware, in the US and increasingly in Japan, patents have
been granted for what is essentially pure software. Some EPO and national
court rulings indicate that Europe may be drifting towards extending the
scope of patentability to inventions which would traditionally have not
been patentable, as well as pure business methods. It is clear that
Europe needs a uniform legal approach which draws a line between what can
and cannot be patented, and prevents the drift towards the patentability
of software per se.

My intention is clear in the amendments tabled and in a new Article 4 in
the text, to preclude; the patentability of software as such; the
patentability of business methods; algorithms; and mathematical methods.
Article 4 clearly states that in order to be patentable, a
computer-implemented invention must be susceptible to industrial
applications, be new, and involve an inventive step. Moreover I have
added a requirement for a technical contribution in order to ensure that
the mere use of a computer does not lead to a patent being granted.

Furthermore, the amended directive contains new provisions on
decompilation that will assist software developers. While it is not
possible to comment on whether any patent application would be excluded
from the directive, the directive, as amended, would not permit the
patentability of Amazon's 'one-click' method. As far as software itself
is concerned, it will not be possible to patent a software product.
Software itself will continue to be able to be protected by copyright.

With an EU directive, legislators will have scrutiny over the EPO and
national court's decisions. With, in addition, the possibility of having
a definitive ruling from the European Court in Luxembourg, thus ensuring
a restrictive interpretation of the EU directive and a greater degree of
legal certainty in the field of patentability of computer-implemented
inventions.

Some concerns have been raised that the directive may have an adverse
effect on the development of open source software and small software
developers. I support the development of open source software and welcome
the fact that the major open-source companies are recording a 50% growth
in world-wide shipment of its products.

In the amended proposal, I have imposed a requirement on the Commission
to monitor the impact of the directive, in particular its effect on small
and medium sized enterprises, and to look at any potential difficulties
in respect of the relationship between patent protection of
computer-implemented inventions and copyright protection.

Many small companies have given their support to this directive, which
will give them more legal certainty as it offers the possibility of
protection for their R&D investment, and so assists in spin-off creation
and technology transfer and generating new funds for new investments.

Indeed recently, a small ten-person company in an economic black-spot in
the UK granted a licence to a US multinational for its voice recognition
software patents. Without European patent protection in this field, the
small company could have found itself in the perverse situation whereby
its R&D efforts and investment would simply have been taken by a large
multinational company, who, with its team of patent lawyers, would have
filed a patent on this invention. The EU company could have been faced
subsequently with patent infringement proceedings.

Some lobbyists would like us to believe that having no patents is an
option - it is not. No patents would put EU software developers at a
severe disadvantage in the global market place, and would hand over the
monopoly on patents to multinational companies.

The work I have done is an honest attempt to approach this matter
objectively, and to produce balanced legislation, taking into account the
needs and interests of all sectors of the software development industry
and small businesses in Europe. No doubt there will be more debate and
refinements to the legislation before a final text is agreed under the EU
legislation process.

At a time when many of our traditional industries are migrating to Asia
and when Europe needs increasingly to rely on its inventiveness to reap
rewards, it is important to have the option of the revenue secured by
patents and the licensing out of computer-implemented technologies.

Software development is a major European industry. In 1998 alone the
value of the EU software market was ^À39 billion. Most of this will be
protected by copyright, but genuine computer-implemented inventions must
have the possibility, for the future of competitiveness of our industry,
to have patent protection.



Yours sincerely

Arlene McCarthy MEP

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Posted Sep 4, 2003 8:40 UTC (Thu) by jharding (guest, #1102) [Link]

Here is a challenge to McCarthy's "factsheet": http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy030901/

Posted Sep 4, 2003 9:47 UTC (Thu) by dps (subscriber, #5725) [Link]

I have at least one idea for software which I think *is* innovative, but I will not disclose it right now... there is a plan to turn it into a product sometime. In truth, it is one of my pet research ideas and there are no obvious clues about whether it works or not yet. If it would be patentable is unclear, as what I would claim as new is either is probably either an algorithmic or a mathematical technique.

If you are looking for algorithms that might have been innovative enough to merit a patent then things like huffman coding and any of one various Lempel-Zif (I think that is now they are spelt) compression techniques look like good candidates. IMHO one-click, thick lines, run length encoding with runs limtied to 15 and stored in 4 bits, etc should not be patentable. I would find it hard to see software as parententable *unless* it implemented new mathematics or otherwise made genuinely novel use of existing mathematics and met the other criteria.