transcript of first McCarthy part of JURI-20030616 (fwd)

[Hartmut Pilch <phm@a2e.de>]

Erik's work is extremley helpful.

This is the kind of transscription of which we badly need more.

Too bad Erik, who is one of the most savvy experts in swpat and talking to
MEPs at the moment, has to do this himself.

-----------------------------
Date: Sun, 22 Jun 2003 00:35:49 +0200
From: Erik Josefson <erikjosefsson@telia.com>
Subject: [Bxl] transcript of first McCarthy part of JURI-20030616

I started here:

http://www.digitalforbruger.dk/SWPAT/JURI-20030616/1055838377804350503/cinema_player?servinfoid=1055836727447856832

First comment by McCarthy JURI-20030616.

Thank you President,

Really, I think that we should now be ready for the vote. I would actually
commend members now to look at seven compromizes that I have now produced
in an attempt to meet some of the concerns that commitiee memers have
raised with me.

I have produced six, in fact Mr Gargani has his own compromize amendement,
which he or other members may like to speak to speak to.

What I have done, as I have said, is - in terms of the need for us
probably to review and to look at, the operation of the EPC in the light
of both the Community Patent and this directive - is that we are asking
the Commission to perhaps prepaire for a conference to look at those
specific issues that come out of this new legislation.

I have also put in an amendement asking how this directive then will be
taken into account in the practise of the EPO and its examiners, how its
examin guidelines, because I have been very clear, I believe, in trying to
get, as I have frequently said, a more restrictive interpretation of the
law as it currently is applied within the EPO, that we do not drift
towards a situation of patenting algorithms, business methods, but we try
to restrict very clearly the applicability of patents to software
inventions that are genuine inventions that make a technical contribution.

We also have an amendement which tries to clarify, a compromize which
tries to clarify, the issue of defining the claims, and I can read that
out to members, what is says is that the scope of exclusive rights
conferred by any patent are defined by the claims. Computer implemented
inventions must be claimed with reference to either a product, such as a
programmed apparatus, or to a process carried out by such an apparatus.
Accordingly where individual elements of software are used in context
which do not involve the realization of any validly claimed product or
process, such use will not constitute patent infringement. And again, with
cross reference to the copyright directive, we have tried to ensure that
computer programmers will be able to decompile, reverse engeneer without
beeing infringing in patents.

I have also asked the Commission to monitor particularily the impact of
this directive and where necessary to submit proposals for amending
legislation to the Parliament and to Counsil. That is because, as I have
said, I believe that we have got a tighter definition, but of course we
now have to se how the law interprets this particular directive and if we
feel that it is interpreted in a way that is too broad then we reserve the
right, obviously, to ensure that the directive is interpreted in the
spirit and in a manner in which we voted through this Commitee of the
Parliament.

I have also added, to try to lay some concerns of those members concerned
about the issue of the inventive step and making it technical
contribution. In paragraph two I have redrafted there, that paragraph to
say, that member states shall ensure that computer implemented invention
making a technical contribution constitutes a necessary condition, so that
is a fundamental prerequisite and condition, of involving an inventive
step.

And then finally, I have had many SMEs who have come to lobby me on this
issue. Many from different parts of the EU, from Belgium, Germany, from
the UK, who actually are in support of what this committee is trying to
achieve, but they have raised the issue with me of the fact that this of
course should not just be for big enterprises. We must make sure that
where small companies are able to produce inventions in this area, that
they too have the right and the access to patents. And that is why I have
asked the Commisson to monitor again the impact of this directive,
especially on SMEs. And I have added to this, a request to ask the
Commission to pay particular attention to the possability of adopting
measures, designed to make patent protection more acessable to SMEs and to
assist them with the costs of obtaining and enforcing patents.

I think it would be quite useful if the Commission would reflect on a
system, that is currently operated of fees within the patent office, we
all know that larger companies have lawyers that can help them with
patents, from my perspective, I would like to see some kind of unit based
in the patent office which would actually be an advisory or guidance unit
to help SMEs firstly to work out weither they do have a patent in which
case they may then go to the next step of employing a lawyer obviously at
cost to assiste them in accessing patents in this area. But I do think it
is quite unreasonable sometimes to require of SMEs of small companies of
maybe ten people that they can afford to go down this route without some
kind of certainty that they are going to achieve it in the end with a
patent. So I would like to see the Commission working with the patetnt
office and with member states to try and make this more accessable and
more affordable particularily for SMEs.

I was asked particularily by the Green group to look at the issue of the
burdon of proof in cases alleging patent infringement. I have provided a
note on that. But it is very clear that is is the party who asserts that
certain facts exist, has to then prove those facts for the required weight
of evidence. The burdon is very much on the company, weither large or
small, who is alledgeing that their patent has been infringed. I have done
as I have said a note on that which may assist members in understanding
how that currently works in the system.

So I think, really President, it remains, I think, for other members
perhaps to come in with particular compromizes that they may have tabled,
and particular amendements they feel we ought to support. I have now
produced a voting list and I am clear on my mind what I want to achieve
with this directive. As I have said already several times, I will not be
accepting amendements that attempt to radically redefine patent law, and I
have to say, not because I dont agree with, necessarily, a redefinition of
patent law, but the reality is that if there are people that want a
radical change and a radical rewriting, then I think the burdon of proof
is on them to explain what will be the outcome of such a radical
redefinition of patentability.

I want to be very clear that in some amendements, which I belive are a
little bit confused, people have confused software inventions with overall
software. We are not here patenting software per se. And it is very clear
in the amendements I have tabled that I have excluded algorithms, I have
excluded business methods, that is very clear in article 4a, a new article
I have included, and it is also very clear in recitals and I would ask
members to have a look at both those recitals and the articles and also to
have a look at the comromize I have tabled.

I have been very clear in article four, that I believe there are a number
of hurdles that a company whatever size has to jump over in order to
achieve a patent. Those are very deliberately an interlocking coherent
number of steps that are i one article. That is why I will not accept,
particularly from other committies, where they have decided to move these
particular steps around into different articles. I think if we are not
coherent in one article what exactly are the key triggers in order to
achieve patentability, then I believe that what will happen is that you
may have a very loose interpretation by lawyers and by judges, which I
think will then inadvertadly lead potentially to an extention of
patentability. And that is exactly what we have argued we do not want to
see in this directive.

I stopped at 08:17. I will continue soon.

//Erik
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