Re: Why Restart the Software Patent Directive
Dear Member of Parliament,
Tomorrow, the Legal Affairs Committee will discuss the proposed directive "on the patentability of computer-implemented inventions" (software patent directive) with Commissioner McCreevy?, and it will also have to decide whether MEPs will have the opportunity to vote on a return to 1st reading when the Council's proposal arrives in the Parliament. 61 MEPs from EPP, ESP and ALDE have demanded this right by a motion based on Rule 55(4) in late December, but until now it seems that so far the Tabling Office has denied this right without giving an explanation.
We are worried so see an erosion of MEP rights taking place while the Commission and Council are setting new sad precedents of disrespect for parliamentary democracy, both at the EU and national level. Under these circumstances, MEPs have very good reasons to insist on their right to file motions under rule 55(4) and their right to vote on a return to 1st reading. As we shall argue, the software patents directive is one of the cases where the exercise of this right makes sense.
These days you have been receiving letters from Nokia, Ericsson, Alcatel, Unice and many other players who have built their business models around the patent system, demanding that you should take a strong stance against any motion based on rule 55.
The reason given for this demand is usually that you must quickly nod off the Council agreement, because "industry" can no longer wait. They also claim that this agreement forbids the patenting of software and business methods.
However, in internal memoranda of the same players, e.g. a memorandum sent out by a national member of UNICE to the patent lawyer committees
- of its member associations, the explanation is quite different
- The Council has basically maintained its position of November 2002. It has adopted only a few uncritical amendments from the Parliament. We must make sure that this position is adopted by the Council as soon as possible. Once it is handed to the Parliament for a second reading, the Parliament will most likely be unable to assert any of the amendments of September 2003 in view of the higher majority requirements.
- The majority requirements are laid down in //www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+RULES-EP+20040720+RULE-062+DOC+XML+V0//EN&HNAV=Y
Amendments to the Council's common position
4. An amendment shall be adopted only if it secures the votes of a
majority of the component Members of Parliament.
The above analysis of the UNICE member organisation is correct. After
the Parliament passed its amendments in September 2003, the Council's
"Intellectual Property (Patents) Working Party" (i.e. the very people
who sit on the administrative Council of the European Patent Office)
ignored these amendments and merely reiterated their previous
position, adorning it with some cosmetic amendments from the JURI
reading of June 2003, which themselves were at best slight rephrasings
of this same Council position of November 2002. The result was the
most extremely pro-software-patent proposal yet seen in the procedure.
It basically consists in the US rules for software and business method
patentability, but rephrased in deceptive packaging. Thanks to
manipulative orchestration by Commissioner Bolkestein together with
the German delegation and the Irish presidency, this proposal made it
through a Competitiveness Council meeting on 18th of May 2004 without
really enjoying the support of a qualified majority of member state
governments
http://swpat.ffii.org/letters/cons0406/.
The national parliaments woke up late, but did pass some resolutions and even binding decisions against the Council and in favor of the EP. The governments of the Netherlands, Germany and Denmark are under obligation to withdraw their support from the Council's agreement. Other governments have made unilateral statements to show their lack of support. It is unlikely that the Council will ever again pass an agreement that ignores the Parliament's amendments. Therefore the patent industry wants the Council to quickly adopt this paper without a qualified majority, so that it can be pressed through Parliament with help of the heightened majority requirements.
The patent industry is meanwhile staging a misinformation campaign of staggering proportions, paralleled only by the maneuvers of 1998, when one of the current campaign managers rolled handicapped people in wheelchairs into the Parliament to ask for the unfortunate gene patent directive to be passed. Similar emotional cues are being used now in large newspaper advertisements (e.g. European Voice). So-called SME representatives from non-software fields are being sent to the Parliament to tell you that they would suffer from the limitations on patentability which the Parliament proposed in September 2003. Siemens representatives are telling you that this directive would undermine the R&D efforts for important medical machines. But they probably are not showing you any of their patent claims. If you could take a look at these claims, e.g.
Siemens system for medical data acquisition
you would notice that Siemens has obtained monopolies on the data processing methods of medical doctors, i.e. on medical business methods dressed up as apparatusses, and is thereby threatening rather than saving lives. You would also notice that medical data processing achievements, like other software innovations, sufficiently protected by copyright and business secret, and that the patents of Siemens and others in this field have no merit. But will you have the time to really investigate the questions? Will you have time to force the patent industry into the form of communication which they dread most: a dialogue, where their wild claims can be subjected to scrutiny?
If you do think you have some time to look at real patent claims, you might want to try
for a list of software patents currently pending in your home country.
Unlike Siemens and the like would have you believe, the amendments of September 2003 represent a conservative minimum that is needed to prevent the patentability of software and business methods. While the Parliament built 5 walls against patentability, the Council tore these down and built 5 opposite walls, i.e. walls designed to prevent any limitation of patentability. If you fail to secure 60-70% of the votes for again tearing down the five walls of the Council and rebuilding those of the Parliament, we will end up with a directive that pleases nobody, and there will be little hope of successful negotiations in Conciliation.
Even if you succeded in mustering 60-70% for all the crucial amendments, you will enter a Conciliation round with a Council that has not yet faced the problems. You will be negotiating confidentially with national patent officials who are more versed in patent sophistry than any MEP, and who are not even under effective supervision from their national governments, let alone parliaments.
Both the Council and the patent world are immobile and unresponsive to the interest of the public. The Council of Ministers in combination with the Patent World is a particularly toxic mixture, and it takes much more time than usually to build up a public discourse that can bring them under pressure.
The Council's patent legislators have not yet found it necessary to face the problems in open discussion. Should they really be allowed to get away without it? Shouldn't the Council's be obliged to address the Parliament's concerns and, whenever it chooses to oppose the Parliament, do so only with support of national Parliaments?
The best solution would of course be to ask for renegotiation of the Council's position of last May. This position does not enjoy the support of a qualified majority. All that needs to be done is to ask for reopening of negotiations. If only one country asks, there will no longer be a qualified majority.
But it is quite possible that these efforts will fail and the Council will one day adopt the unsupported agreement of May 2004 as an A-item. In that case the Parliament needs to be prepared to vote for a return to 1st reading. To prepare for that, a favorable decision by JURI is needed tomorrow. Moreover, the rights of any group of MEPs to table a motion for renewed referral, as laid down in Rule 55(4), is in danger of being lost. In times where new precedents for undemocratic interpretation of the EU's rules are being set wherever we look, an appeal to the European Court of Justice for MEP's rights may be very much worthwhile.
The FFII has meanwhile has a representative office in Rue Michelange 70 and is working as a member organisation of CEA-PME (Confederationn of SME Associations in Europe). CEA-PME represents associations with 800,000 SME members from all over Europe. FFII has 80000 individual and 1200 corporate supporters and has become a center of expertise on legislation in the fields of software and industrial property rights.
We are available to help you ask embarassing questions to the patent campaigners and to help strenthen informed lawmaking by elected representatives in the EU.
--
Hartmut Pilch tel. +49-89-18979927
Data Processing is not a Field of Technology http://swpat.ffii.org/
350,000 Votes + 3000 CEOs against Software Patents http://noepatents.org/