[Fsfe-ie] Follow-up email for Mairead McGuinness MEP

Ian Clarke ian at locut.us
Fri Jun 10 10:37:14 CEST 2005

When Aidan McGuire and I met Mairead McGuinness MEP on the 26th, she  
asked if we would send her a follow-up email outlining the  
situation.  Here is the email we sent, in which we try to distil the  
issue down to its bare essentials.  Feel free to use any part of this  
for any reason if you feel it might be useful.

Begin forwarded message:

> From: Ian Clarke <ian at locut.us>
> Date: 5 June 2005 14:07:24 BDT
> To: mmcguinness at europarl.eu.int
> Cc: amcguire at bluefountain.com
> Subject: Follow-up to meeting on 26th May about the software  
> patents directive
> Dear Ms McGuinness,
> Many thanks for meeting Aidan and I on the morning of Thursday 26th  
> May on the issue of the Software Patents Directive.  As promised,  
> we will attempt to provide a brief summary of the issue and our  
> position.
> In 1972 art. 52 of the European Patent Convention (EPC) stipulated  
> that programs for computers shall not be regarded as inventions and  
> shall therefore not be subject to patentability[1].
> In recent years the European Patent Office (EPO), through a dubious  
> interpretation of the EPC, has granted over 30,000 patents on  
> software[2], over 70% of which are owned by non-European  
> companies.  These patents remain largely "inert" as any attempt by  
> the patent holder to initiate litigation over these patents would  
> likely result in their invalidation.
> For this reason Europe has been spared the negative impact of  
> patents on computer programs that is currently being experienced in  
> the United States, where the Federal Trade Commission has raised  
> concerns over the impact of software patents[3] and where even  
> Microsoft, a strong advocate for software patents in the EU, has  
> called for patent reform[4].
> According to a recent study by Maria Alessandra Rossi of the  
> Doctoral School of Law and Economics, University of Siena[5], the  
> current text of the Software Patents Directive as approved by the  
> Council of Ministers will result in "...a significant extension of  
> patentability, close to the situation corresponding to a deletion  
> of art.52(2) and (3)."
> In this debate, the scope of patentability hinges on the definition  
> of the term "technical", as the current Directive text excludes  
> software from patentability unless it is of a "technical nature".   
> The problem is that the EPO considers virtually all software to be  
> of a technical nature, so this exclusion is next to meaningless.   
> In the first reading the European Parliament added a definition of  
> the term "technical" to the Directive text for the purpose of  
> clarification, but this was removed by the Council of Ministers.   
> It is therefore critical that the Directive be clarified to include  
> a definition for this term.  This is achieved by the amendments we  
> cite below.
> The effect of the directive being passed unamended will be to open  
> the floodgates to litigation of over 30,000 existing (but  
> questionable) European software patents.  While large software  
> companies may have the resources to defend themselves against this  
> litigation, the vast majority of European SMEs will not.  This is  
> why organisations such as UAEPME which represents over 11 million  
> European SMEs[6] strongly oppose the current text of the Directive.
> One point you mentioned specifically was that you had been  
> contacted by an employee of Ericsson who claimed that their job  
> would be jeopardised should this Directive not be passed.  The  
> argument that companies will experience pressure to relocate  
> outside Europe should software patents not be permitted here is  
> entirely specious.  The location of a company has no bearing on its  
> ability to acquire patents in other jurisdictions, and so no  
> advantage could be gained from moving to a jurisdiction where  
> software patents are permitted.
> It may be the case that this employee was concerned about  
> Ericsson's ability to compete against smaller competitors if  
> Ericsson cannot use software patents against them.  I would argue  
> that it is not the responsibility of any EU institution to protect  
> Ericsson against legitimate competition from other companies,  
> indeed competition must be encouraged.  Software patents will have  
> a stifling effect on competition in Europe, and this is why some  
> large companies like Ericsson are strong advocates for this directive.
> The Foundation for a Free Information Infrastructure, an  
> organisation whose line we endorse, has prepared an analysis of the  
> amendments, indicating which will help to ensure that software  
> patents do not become patentable, and which will not.  This  
> document may be downloaded here:
>   http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/ 
> amendment-analysis.pdf
> In particular, we support the position and amendments of Piia Noora  
> Kauppi MEP, who has taken a strong position against the  
> introduction of software patents within the EPP group, and also the  
> position of Michel Rocard MEP who is the rapporteur for this  
> Directive.
> We hope this brief summary of the issue and our position has proved  
> useful to you, if you have any further questions please feel free  
> to contact us.
> Yours Sincerely,
> Ian Clarke, Aidan McGuire.
> References:
> [1] http://www.european-patent-office.org/legal/epc/e/ar52.html#A52
> [2] http://webshop.ffii.org/
> [3] http://www.ffii.org.uk/swpat/ftc/ftc.html
> [4] http://www.infoworld.com/article/05/03/10/HNmicrosoftpatent_1.html
> [5] http://wiki.ffii.org/Rossi050310En
> [6] http://wiki.ffii.org/Ueapme050427En

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