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

Justin Mason jm at jmason.org
Fri Jun 10 19:17:37 CEST 2005 

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great email -- it'd be nice to deal with the "as such" loophole, which
seems to be coming out in virtually every pro-swpat Irish politican's
speeches these days too.

- --j.

Ian Clarke writes:
> 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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