Concerns About European Patents
Ted Doyle
 This
follows perhaps too closely on the heels of my last missive, but today is
important. Today was a day of protest against the idea that Europe should be
able to patent software.
The European parliament, for one reason or another, agreed. And so a
proposed legislation that may have allowed large corporations to block
future analogs of Apache, PHP, Linux and other highly desirable, free and
progressive software from the market was shelved ... for the moment.
The woman most identified with this legislation, Ms Adele McCarthy, is a
Member of the European Parliament from the north of England. She is, she
says, the "rapporteur" for the proposed legislation (I think
that is, in the feudal flavor of French based EU protocols, a person who
champions some cause in the Courts of the King . . . but then I am not a
specialist in such matters of continental tradition. They are gotten from
civil, or later Roman notions of representative procedure, and are quite
unlike our English traditions which appeal to an older, more Grecian view).
Ms McCarthy has an obvious desire to do her best for those companies which
hail from her part of the world. An industrial "black spot" she
calls it; a place we can presume, where nothing much is happening in
England's blasted northern industrial heath.
She argues cogently for her corner . . . her basic premise being that
patents for software are being issued already by the European Patents
Office, and yet countries in the EU have no legal right to review these
patents, nor is there a consistent overview process for the granting of
patents in this way. She says the legislation she "rapports" is an
attempt to make this process more answerable, and to avoid a slide into the
US system, where, it is said, large corporations can corner an invention and
prevent its distribution.
She says that recently, a small software company in the north of England was
able to negotiate a license agreement with a major US player for their voice
recognition software . . she says this would not have been possible
without European patents. So clearly, we already have effective European
patent processes which protect small European companies in their dealings
with US predators, so why do we need more?
According to Ms McCarthy we need more because "in the US and Japan
patents have been granted for what is essentially pure software. Some
European Patents Office and court rulings indicate that Europe may be
drifting towards extending the scope of patentability to inventions which
traditionally have not been patentable, as well as pure business
methods."
It is clear, she says, that Europe needs a uniform legal approach which
draws the line between what can and cannot be patented, and prevents
"the drift towards the patentability of software per se".
Now it has been a long life, and I have been scribbling about it since the
1960s.I have a fair memory for transgressions I have committed in that time:
most of them.
Today, however, to my surprise I discovered I was about to commit one I
hadn't enjoyed before; I have been in communication with Ms McCarthy, in an
effort to see what exactly she was up to. I wanted to know whether in fact
it constituted good, if misbegotten faith. I have now her reasoning and in
good faith it may reside, but it is beyond me to explain what I think about
it.
More honestly, I find a great soul weariness creeping over me, for I suspect
I need to explain it, and this frightens me.
I reproduce for you below the correspondence. My transgression is that I did
not reveal to Ms McCarthy that I would publish this. In thirty odd, nearly
forty, years I have never done such a thing ,.. it is an important day, And
this is an important issue.
So. The correspondence:
Mine to Ms McCarthy, mid-afternoon, re proposed legislation:
"Have mailed your easynet address asking to see some logic behind these
apparently destructive proposals.
Am repeating to this address not as a discourtesy, but because I
cannot believe what is being proposed and need reassurance.
My group of companies is being asked to join actions against you and
these proposals, and I need to know why.
Pls explain, comrade
Ted Doyle"
Her response, late afternoon:
"Dear Ted Doyle,
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 henomenon. 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 $39 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"
Here is my response to that, early evening:
"Thank you for what is clearly a thoughtful reply.
I understand the parliament's intent is consistent with its views on
protection of competition and the levelling of opportunities between
competing organisations.
Let me cut to the chase. In the sixth paragraph you state:
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.
And in the ninth paragraph you state:
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.
You then say that "Some lobbyists suggest no patents would be
better" . . . or words to that effect.
I don't intend debate on this. We are both too busy.
Here are the points, as I understand them:
1. You CANNOT patent a core fact of computing science (algorithmic
methods etcetera).
2. You CAN patent an implementation, which you developed based on core
concepts of computer science.
So, therefore a Linux could be invented again by a European, but once
the so-called "owners" of Unix had lodged their patents it could
never be distributed.
Bill Gates and his analogues must send up prayers to heaven in
gratitude for this legislation, every night.
It is crucial to preserve the health of the non-corporate development
of the IT industry, for that is what has driven every major advance since
the beginning, and that health is best exampled by the open software
movement.
So may I suggest:
Any software invention produced under and covered by the open software
license be exempt under the legislation from legal attack by a patent
holder.
Can you assure me that would be the case? Oh, and by the way, I cannot
for the life of me understand what your sixth paragraph actually means.
I have no love of a corporatised world, comrade, and as I near my
sixth decade, most of them in computing, I slowly realise that Lev was not
all wrong, but the Georgian was all powerful.
It deserves study.
Still, now, in this strangely unprincipled world, I believe the young,
and their open software anarchy hold out hope to us all. Would you, in your
desire to encourage small software companies unwittingly play the Ford or
Rockefeller hand against them?
I look forward to your reply
Ted Doyle"
If you are puzzled by the seemingly socialist salutations, don't be. In my
early life I was one, a real one. And I earned the right to address members
of formally socialist organisations, like the British labor party, as
"comrade".
If you are unaware that there is anything untoward about Ms McCarthy's
second paragraph in the correspondence above, following her proposals being
voted down by the parliament;to wit:
"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"
. . . don't feel like Robinson Crusoe.
I suspect she doesn't see anything wrong with it either, and that is the
reason we are all doomed.
For those who do understand "four legs good, two legs bad"...
prepare to defend yourselves, gentlemen.
Ted Doyle,
London
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