[Free-sklyarov-uk] Reply from Arlene McCarthy MEP

[phil hunt]

Recently I wrotye a letter to Arlene McvCarthy MEP regarding software
patents (see <http://www.cabalamat.org/weblog/art_29.html> for details).

I've just received a reply from her, which follows.
I'm going to draft a reply to this and would be grateful for your=20
input.

------------- begin --------------
Response to your correspondence regarding the draft EU directive on=20
patentability of computer-implemented inventions.
Date: Wed, 16 Jul 2003 16:10:06 +0100 (BST)
From: Arlene McCarthy <arlenemccarthymep at yahoo.co.uk>
To: philh at cabalamat.org


Dear Philip Hunt,



Thank you for your correspondence concerning the draft directive on the=20
patentability of computer-implemented inventions.



The European Parliament's Legal Affairs Committee has voted on my report =
on=20
the directive and there will be continuing debate and further democratic=20
scrutiny before the directive becomes law.



At this early stage of legislative process, it is nonetheless important t=
o=20
establish the facts about what the draft EU directive and what I, as the=20
Parliament's rapporteur, are aiming to achieve in the amendments tabled t=
o=20
the Commission proposal.



It has been suggested that the Parliament's report will for the first tim=
e=20
allow the patentability of computer-implemented inventions. This is simpl=
y=20
not true. The patenting of computer-implemented inventions is not a new=20
phenomenon. Patents involving the use of software have been applied for a=
nd=20
granted since the earliest days of the European Patent Office (EPO). Out =
of=20
over 110,000 applications received at the EPO in 2001, 16,000 will have d=
ealt=20
with inventions in computer-implemented technologies. Ind
ed, even without an EU directive, these patents will continue to be filed=
,=20
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 b=
een=20
granted for what is essentially pure software. Some EPO and national cour=
t=20
rulings indicate that Europe may be drifting towards extending the scope =
of=20
patentability to inventions which would traditionally have not been=20
patentable, as well as pure business methods. It is clear that Europe nee=
ds a=20
uniform legal approach which draws a line between what can and cannot be=20
patented, and prevents the drift towards the patentability of=20
oftware per se.



My intention is clear in the amendments tabled and in a new Article 4 in =
the=20
text, to preclude; the patentability of software as such; the patentabili=
ty=20
of business methods; algorithms; and mathematical methods. Article 4 clea=
rly=20
states that in order to be patentable, a computer-implemented invention m=
ust=20
be susceptible to industrial applications, be new, and involve an inventi=
ve=20
step. Moreover I have added a requirement for a technical contribution in=
=20
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 decompilati=
on=20
that will assist software developers. While it is not possible to comment=
 on=20
whether any patent application would be excluded from the directive, the=20
directive, as amended, would not permit the patentability of Amazon's=20
'one-click' method. As far as software itself is concerned, it will not b=
e=20
possible to patent a software product. Software itself will continue to b=
e=20
able to be protected by copyright.



With an EU directive, legislators will have scrutiny over the EPO and=20
national court's decisions. With, in addition, the possibility of having =
a=20
definitive ruling from the European Court in Luxembourg, thus ensuring a=20
restrictive interpretation of the EU directive and a greater degree of le=
gal=20
certainty in the field of patentability of computer-implemented invention=
s.



Some concerns have been raised that the directive may have an adverse eff=
ect=20
on the development of open source software and small software developers.=
 I=20
support the development of open source software and welcome the fact that=
 the=20
major open-source companies are recording a 50% growth in world-wide ship=
ment=20
of its products.=20



In the amended proposal, I have imposed a requirement on the Commission t=
o=20
monitor the impact of the directive, in particular its effect on small an=
d=20
medium sized enterprises, and to look at any potential difficulties in=20
respect of the relationship between patent protection of computer-impleme=
nted=20
inventions and copyright protection.



Many small companies have given their support to this directive, which wi=
ll=20
give them more legal certainty as it offers the possibility of protection=
 for=20
their R&D investment, and so assists in spin-off creation and technology=20
transfer and generating new funds for new investments.=20



Indeed recently, a small ten-person company in an economic black-spot in =
the=20
UK granted a licence to a US multinational for its voice recognition soft=
ware=20
patents. Without European patent protection in this field, the small comp=
any=20
could have found itself in the perverse situation whereby its R&D efforts=
 and=20
investment would simply have been taken by a large multinational company,=
=20
who, with its team of patent lawyers, would have filed a patent on this=20
invention. The EU company could have been faced subse
uently with patent infringement proceedings.



Some lobbyists would like us to believe that having no patents is an opti=
on -=20
it is not. No patents would put EU software developers at a severe=20
disadvantage in the global market place, and would hand over the monopoly=
 on=20
patents to multinational companies.



The work I have done is an honest attempt to approach this matter=20
objectively, and to produce balanced legislation, taking into account the=
=20
needs and interests of all sectors of the software development industry a=
nd=20
small businesses in Europe. No doubt there will be more debate and=20
refinements to the legislation before a final text is agreed under the EU=
=20
legislation process.



At a time when many of our traditional industries are migrating to Asia a=
nd=20
when Europe needs increasingly to rely on its inventiveness to reap rewar=
ds,=20
it is important to have the option of the revenue secured by patents and =
the=20
licensing out of computer-implemented technologies.



Software development is a major European industry. In 1998 alone the valu=
e of=20
the EU software market was =8039 billion. Most of this will be protected =
by=20
copyright, but genuine computer-implemented inventions must have the=20
possibility, for the future of competitiveness of our industry, to have=20
patent protection.



=20

Yours sincerely



Arlene McCarthy MEP
------------- end ----------------

--=20
Phil
"If only sarcasm could overturn bureaucracies"=20
   -- NTK, commenting on www.cabalamat.org/weblog/art_29.html