transcript of first McCarthy contribution in JURI 20030616

[Erik Josefson <erikjosefsson@telia.com>]

Transcript of McCarthys first contribution to the discussion in JURI 
20030616. Native britons could very much help get the interpunctuation right. 
Perhaps http://swpatwiki.ffii.org/ would be useful for that.

The recording can be found here (realaudio):

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


JURI 20030616 - First contribution by McCarthy.

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 
burden 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 burden 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 burden 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 compromize 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.

As I have said, there are amendements that in terms of using terms like the 
forces of nature, I think it is very unclear what significance those would 
have, for many of our enterprizes in Europe, and I think we would be putting 
our companies into disadvantage if we were to provide for them a law, or an 
interpretation of the law, that was unclear or uncertain, and would end up 
putting them at a disadvantage [to] some of the global players who also rely 
on patent law to protect their inventions.

I dont want to speak any longer really, because I think, as I have said, it 
is quite clear what I have tried to achieve. We have had several discussions 
on this issue. I think it is now important that we vote. I have produced 
compromizes where it has been possible to produce compromizes, but I think 
where I have a particular approach and a particular coherence in the legal 
approach I have taken, then I think it is very difficult to argue then in 
favour of compromizes where there are/is a very radical approach and a 
different approach to what I an trying to do. There are no compromizes 
possible in this area. I think simply that the comittee must vote.

So I will finish there President, and I think it would be useful if some 
members were to come in and intervene, particularily where they have also 
tabled a compromize amendement, to justify that amendement they have tabled 
as well. Thank you.

//Erik