Campaign against software patents (Català)Campaign against software patents (Català)
Last week, Nov the 7th 2002, the European Parliament held a hearing on the proposed directive COM(2002)92 on software patents. Eleven external experts and four members of the European Parliament (MEP) debated the current situation with the European Patent Office (EPO) and the changes, if any, that the Commission proposal or alternatives would cause.
Although external participants were almost equally divided in pro and against software patents, few welcomed the directive unchanged. There was consensus that the current situation lacks legal certainity, and even though one speaker from the EPO defended the legality of their practise (tens of thousands of software patents already granted), another EPO representative wellcomed the harmonisation of law and practice, implying there is some difference. Several speakers thought some directive or other was convenient for allowing the European Court of Justice to control indirectly the EPO. Those that didn't find any directive convenient mainly argued the vagueness of the Comission's proposal, or wanted to surrender the decision on what is patentable to the courts of justice.
The MEPs ranged from the neutral to the sceptical, with some raising very critical questions. In all, the hearing contributed more questions than answers, although the speakers contrary to software patents did provide some strong answers. Some of the most pressing open questions were:
Dominic Sweetman, a software SME director who declared he had tried hard for six months to understand the EPO standard for granting software patents and still couldn't imagine what kind of software would be exempt from patents under the current EPO doctrine or the directive proposal, asked for such an example. He got no answer.
Michel Rocard, French socialist MEP and rapporteur for the Culture committee, posed five questions which addressed the political issues around the directive. It amounted to asking what good the directive achieves for society or the economy. These issues were somewhat ignored in the debate (specially on one side), which was more centered on legal questions, although some of the critical speakers pointed out problems for SMEs, competition and innovation.
Some wanted to know the effectiveness of any directive to control the pratice of the EPO, since the EPO is independent of the UE. The directive was found to be not directly binding the EPO, and instead indirect mechanisms were alleged: good will from the EPO officials and the weight of decisions of the European Court of Justice on UE states (that are all also EPO member states).
The technical contribution requirement was largely regarded as undefined in the directive. Almost everybody recognized that if we are to respect the TRIPS agreement as it stands we have to define patentability in terms of "invention", "technical" and "industrial application". Few wanted these terms to be undefined so that the EPO and courts can "adapt" to new technologies by its own case law. Some proposals were presented to recover the traditional meaning of these terms: The FFII alternative text for the directive would reinforce the criteria of "technical" ("problem solution involving use of controllable forces of nature"). And the "industrial applicability" criteria (process involving serial production of material goods) was explained by Prof. Alberto Bercovitz Rodriguez-Cano. Both are rooted in economics and philosophy and are stable along technology evolution.
The effects of the directive on free software were also addressed, since some had the impression that free software and software patents were coexisting in the USA (where the legality of software patents is more clear). While M. Christian N'Guyen, patent lawyer from UNICE (a business association) downplayed the importance of free software and pretended there was no problem, Hartmut Pilch, from Eurolinux (an alliance of free and non-free software businesses, developers and users) provided a documented list of cases[4] where software patents are currently blocking development and availability of free software.
In general the first block of speakers (a patent lawyer, a patent judge, and those from the EPO) where in favor of software patents. While Dr. Hans-Georg Landfermann proposed slight restrictions to the directive, Bob Hart wanted to allow even more claims (to software on media or downloaded).
The second block (interest groups) were divided. The two patent lawyers from business associations implied that any multibillion businesses needs patents, and asked for education campaigns to explain its advantages to SMEs and programmers, who keep opposing to them. The other two speakers were critical of the directive:
Sweetman explained that opposition from SMEs is perfectly rational and well founded, not a product of ignorance (and was later seconded by academic experts), and clearly explained the vagueness of the technical doctrine in the directive and the EPO.
Hartmut Pilch wholeheartedly explained the vast support for the Eurolinux view, questioned the represetativity of the two patent lawyers from UNICE and EICTA refering to documents from their constituency being ignored, and showed indignation at a legislative proposal that would cause serious problems to european IT business and infraestructure. Eurolinux distributed documentation on the problems and measures to be adopted, supported a Patent Observatory to oversee the patent system (as proposed by Bakels), supplied a complete amendment for the directive proposal and demanded that concrete examples of desirable and undesirable patents be used in framing legislation to advance from endless playing on ambigous words.
The third block, that of academic experts, was completely against the directive, although the reasons and suggestions presented were different.
Reiner Bakels, researcher at the Institute for Information Law of the University of Amsterdam, and coauthor of the study in the European Parliament file for the directive, was very critical of the directive as contradictory, and explained that passing it could give the false impression of having solved something. For him the technicity criteria is hopeless for distinguishing good patents from bad ones and triviality and agressive use of patents is a serious problem. Instead of offering an alternative criteria for patentability, he proposed to gather more empirical data on the real facts, by instituting a Patent Observatory.
Prof. Alberto Bercovitz Rodriguez-Cano defended copyright and opposed patents, warning against the effects of patent inflation on the patent system and SMEs, and the undesirability of taking from copyright and patent law only the parts more favorable to property owners, neglecting the interests of society as a whole. He complained of an structural democratic deficit in the EPO and criticised the directive as proposed. He instead proposed to reinforce basic patent law, precisely the industrial applicability criteria, to avoid expanding the scope of patent law, and passing from liberalism to neofeudalism. He urged to remember that using software does not convert in patentable something that wasn't, as well as using software does not convert in unpatentable something that was patentable.
Prof. Michel Vivant joined in the idea of defining patentability according to the process, and not the product, and was unhappy with the Commission proposals. He warned that the information society is not the industrial society and proposed to define "invention" as "technical solution to a technical problem", leaving "technical" for the courts to decide. He also noted that explicit exclusions (such as a proposed exclusion of "business methods") have proved not effective in the EPO caselaw, and wanted more control on the EPO.
Indeed, in the questions that followed, MEPs tried to find out on effective ways to control the EPO, and alternatives such as compulsory licenses, antitrust law and a directive were discussed.
After the hearing there was a more informal meeting which mostly dealt with ways to solve the many problems seen in the directive. Almost simultaneusly a dinner courtesy of the European Internet Foundation was held, with some of the speakers in the hearing, some MEPs and civil servants and some representatives of large corporations in Brussels in favor of software patents.
The European Parliament is now facing the difficult task of fixing a directive proposal that is not appreciated by most, but which some feel that with a more appropiate content should be issued to better redress the EPO pratice (the option of rejecting the directive seems to have relatively low support). In ammending the Commision proposal, the alternative text by FFII could be of great help, since it can probably deal with most of the criticism raised in the hearing, and would mainly raise concerns from the management of the EPO itself (which can only be expected from any legislation aiming at more tightly controling it) and just maybe a few of the big software corporations which happen to represent a small percentage of IT employment anyway.
The hearing was very useful to raise some issues and let everybody express their views, but the work is far from complete, and the challenge is now to find solutions to the issues. MEPs have little time before voting for taking the right decisions (and society at large for having another say). A unique opportunity for discussion is the Conference of the Greens/EFA Group, where software advocates, practitioners and enterpreneurs, patent examiners, economists, administration and politicians will meet together to help find the way to a useful and just legislation.
Conference of the Greens/EFA Group: European Parliament (room ASP 1E2)
on tuesday, November 26th 2002 (13:30 - 18:30)