Large Industry Assocations for McCarthy + Program Claims

[Hartmut Pilch <phm@a2e.de>]

See text below, converted from an MSWord document.

Note that they claim so speak even in the name of "Europes fastest growing
500 Opensource Companies", saying that allowing patent owners to ban
interoperable software, as secured by article 6 of the directive, is a way
of protecting open-source software and that preventing the patenting of
"pure business methods" is a way of preventing "american excesses".

This proposal only shows that the public policy on patents of large
organisations is still dominated by the patent arms of their large
members.

Many of these "industry organisations" are currently lobbying MEPs.  The
standard arguments most often brought forward are

<<

-- This is not an issue of only software companies but of classical
   industrial companies, and the latter badly need swpat to protect
   their innovations in machine-building

-- For that purpose, a claim of the form

     a machine, characterised by that it is programmed in some way

   is not enough.  The machine builders badly need claims of the form

     a program, characterised by that it ...

   Arlene McCarthy's proposal is great, but on this point (Art 5) you
   should follow amendments of Malcolm Harbour (UK, PPE).

-- Copyright does not protect anything.  If you recode
   a C program in Perl you do not infringe on copyright.

>>

The pattern is always the same and there are a lot of patent lawyers
speaking in the name of "the industry" spreading this kind of argument
at the moment.  It is practically impossible to find any real
representative of industry companies, except for patent lawyers, who
will speak in favor of software patents.  But the latter still have
a firm grip on industry associations, as seen below.

------------------------------------------------------------------------

International Chamber of Commerce

The world business organization



22 April 2003

PROPOSAL FOR A DIRECTIVE ON THE PATENTABILITY OF COMPUTER-IMPLEMENTED
INVENTIONS

Joint statement of the Industry  on the Draft Report of the European
Parliament's Legal Affairs Committee

Dear Member of the European Parliament,

A very broad platform of trade associations and industry groups,
including ICC (International Chamber of Commerce), UNICE, EICTA, Growth
Plus, ICRT, Open Forum Europe, BITKOM, AGORIA, INTELLECT, SEDISI and the
Confederation of Swedish Enterprise welcomes the Draft Report of the
Committee of Legal Affairs and the Internal Market, that stresses the
need for a directive and for patent protection of computer-implemented
inventions, and tables amendments that will help to clarify the legal
situation in Europe.  We highly appreciate the work done by the
Rapporteur and want to encourage all the members of the Legal Affairs
Committee to adopt a clear framework that could contribute to the
fulfilment of the promises of the Lisbon summit on the competitiveness
of Europe.  We believe the amendments proposed in the Draft Report are
beneficial to the European industry, including the small and medium
enterprises (see points 1 to 3), but we have a great concern with the
issue of product claims (point 4).

1. The Directive should confirm the current scope of patentability and
ensure that the European practice which has served Europe well is not
disrupted.  Legal certainty in patent protection is a precondition for
the industry to invest in software development. Such certainty needs to
build on the existing interpretations of the legal framework.  By
integrating the long-standing approach of the European Patent Office,
the proposed amendments 2, 3, 4, 5, 6, 7, 12, 14, 15 will codify
existing rules and preclude the patentability of ``pure'' business
methods.  The use of the precise definitions and conditions developed by
the jurisprudence is the only way to prevent an evolution towards an
overly liberal treatment, such as the one in effect in the United
States.   The EPO's rigorous examination practices will be maintained by
this directive and should prevent many of the problems seen in other
parts of the world with so-called ``trivial'' patents.

2. The Directive should  safeguard the possibility for  software
developers to  develop interoperable systems.  Amendment 10 and 16 of
the Draft Report seek to   maintain the existing possibilities of
software developers to engage in studying and reverse engineering of
computer programs by clarifying that acts falling within the relevant
exceptions to the copyright protection of programs, are not affected by
patent protection.

3. The Directive should provide for a mechanism that ensures that open
source software development will not be negatively affected.  Amendment
17 empowers the European Commission to monitor the impact of the
Directive on innovation and competition, and in particular on small and
medium businesses.  This mechanism will guarantee against any adverse
effect of the Directive on the community of independent developers, in
particular on those that are contributing to the development of open
source software products.

4. The Directive should permit to apply for product claims as it is now
allowed by the case law.  Article 5 should be amended to allow program
product claims in line with the existing practice of the European Patent
Office and of Member States' national courts. Otherwise the Directive
will hinder the enforcement of patent protection for computer-
implemented inventions.  The Commission's proposal has indeed the effect
that a product claim can only be enforced when a user implements the
program with some hardware or apparatus.  It is contradictory to provide
for a right that is not easily enforceable against the suppliers (or
distributors), which cause (or participate in) the infringement.
Curiously, a patent owner would be able to stop the supplier of a
software product if the supplier is in the same Member State where the
software is used but not if the software product is exported for use in
a different Member State. The Commission proposal, if not amended, would
have the serious drawback of introducing a cross-border anomaly and
distortion in the internal market.  It is also not consistent with the
stated objective in that the Directive clearly diverges from the
existing practice on this important issue.

The associations below representing a broad cross section of Europe's
most innovative industries seek Parliament's approval of the Directive
on patentability of computer-implemented inventions with amendments
outlined above.

Oliver Blank,                                                   Philippe de 
Buck,

EICTA Director General                                  UNICE Secretary 
General

Urho Ilmonen,                                                   John Stephens,

Chair ICC Commission on                                         ICRT Chairman

Intellectual Property

Graham Taylor,                                          Christian Hunt,

Open Forum Europe Programme Director                    President GrowthPlus

``Initiative to accelerate the market take up ``Europe's 500 fastest
growing of Open Source Software (OSS) companies''

Dr. Bernhard Rohleder,                                  Christian Vanhuffel,

Hauptgeschaeftsfuehrer BITKOM                           Director AGORIA





Anthony Parish,                                         Goerran Tunhammar,
INTELLECT rep. on the                           Director General,
EICTA Board                                             Confederation of 
Swedish Enterprise



Joaquin Oliveras

SEDISI Director General

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
140,000 signatures against software patents          http://noepatents.org/