[Fsfe-ie] European parliamentarians urging India to oppose software patents

Teresa Hackett teresahackett at eircom.net
Wed Mar 23 16:37:40 CET 2005

21 March 2005 -- David Hammerstein, Member of the European Parliament,
sent a letter to the Indian Members of Parliament on the subject of
the patentability of software, which is subject of a bill tabled in
the Indian Parliament on 18 March by Minister for Commerce & Industry
Shri Kamal Nath.

Hammerstein's Letter


Mr. T.K. VISWANATHAN Secretary to Government of India,

Mrs. Sonia Gandhi, Leader of the Indian National Congress, 10, Janpath,

Dr. Manmohan Singh Prime Minister of India

Shri Kamal Nath Minister for Commerce & Industry

L K Advani Leader of Opposition

David Hammerstein Member of the European Parliament Grupo Verde/ALE

Subject: Software patents in the Parliaments of Europe and India

Dear fellow MP,

I am writing to you on the subject of software patents as Member of
European Parliament. The European Parliament has opposed to make
software patentable in September 2003, and in February 2005 the
European Parliament by unanimous vote rejected a proposal by the
Council of the European Union to request that. The debate is still
open here, but speaking as a Parlamentarian I urge you to avoid any
hasty and unwise steps in India.

During our debate, the US trade representative (for example in a
letter of 16 September 2003) has argued that Europe was bound to have
software patents due to the TRIPS treaty. We have now reached the
understanding that in the making of TRIPS there is no indication that
computer programs were to seen as a field of technology in the sense
of TRIPS. Hence we clarified in Article 2 of our directive: "(2) The
use of natural forces to control physical effects beyond the digital
representation of information belongs to a field of technology. The
processing, handling, and presentation of information do not belong to
a field of technology, even where technical devices are employed for
such purposes".

This is in accordance with art 52 (2)(c) of the European Patent
Convention that states clearly that "schemes, rules and methods for
performing mental acts, playing games or doing business, and programs
for computers" shall not be regarded as inventions.

Moreover, article 10 of the TRIPs treaty also clearly demands
protection by copyright for computer programs; TRIPS does not mention
patent protection for computer programs at any place.

Given that the majority of software patent applications at the
European Patent Office is from US and Japanese countries, having
software patentable is clearly not in Europe's interest, and it is
also likely also not to be in India's interest.

I would recommend either

   * to amend the Indian law in the sense as outlined at
   * or just to keep the acceptable present wording of the Patent
Act's 2002 version "3 (k) a mathematical or business method or
computer programme per se or algorithms" and to reject the ambiguous
wording that has it had been issued by the Minister of Industry Kamal
Nath in December 2004 ordinance "3 (k) a computer programme per se
other than its technical application to industry or a combination with
hardware; 3(ka) a mathematical method or business method or algorithms;"
   * or to improve the present wording of the Patent Act's 2002
version by simply deleting "per se" in "3(k) a mathematical or
business method or computer programme per se or algorithms"

With kind regards,

David Hammerstein

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