Re: [Patents] Harbour contribution in JURI 20030616

[James Heald <j.heald@ucl.ac.uk>]

Erik Josefson wrote:
> 
> Beginning of transcript of Malcolm Harbours first contribution to the 
> discussion in JURI 20030616. Clompletion welcome.
> 
> The recording can be found here (realaudio):
> 
> http://www.digitalforbruger.dk/SWPAT/JURI-20030616/1055839312184436912/cinema_player?servinfoid=1055836727447856832
> 
> full session in three languages here:
> 
> http://www.digitalforbruger.dk/SWPAT/
> 
> JURI 20030616 - First contribution by Malcolm Harbour
> 
> Thank you Chairman.
> 
> On behalf of our group, can I just say on behalf our shadow rapporteur 
> Juergen Wurmerling, first of all, to thank Arlene McCarthy for moving the 
> debate onwards and that we will be supporting her package of compromise 
> amendments, and indeed subject to a primal review of the list that we will 
> basically be supporting her voting recommendations.
> 
> Now, why are we doing that? Well because, and I wont repeat what I have 
> said previously, but, we think that she has clearly been focusing on what 
> the objectives of this directive are all about. And that, and I think that 
> is worth reminding ourselves about this colleagues,
> this is to establish within the European Union a different regime from the 
> one that is prevailing in the United States, and also as I understand 
> regrettably in Japan, though that is something which I think we should try 
> and encourage them not necessarily to move in the same direction as the 
> United States.
> 
> And I think from all the lobbying and the many emails that many colleagues 
> have dealt with, I think there is now emerging a general view, that doing 
> nothing is not an option. That this is the right way to move forward. 
> Equally, I think from the way that this is drafted and indeed from the 
> additional recitals that Arlene I think has rightly put in, that it is 
> quite clear that we cant be absolutely sure that we got this right, 
> therefore the review and examination clauses are extremely important. This 
> is an entirely new field. And whenever we have to deal in this Parliament, 
> between issues where we have a crossover between technology and 
> legislation, there are always going to be difficulties.
> 


Now I come from this, as colleagues know, from a technical background.
But I am fully aware of the fact that trying to frame legal clauses, in
eleven languages, in order to achieve our objective in many cases will
in the end be a matter of judgment. And I think in this case we are
prepared to back the rapporteur's judgment; she has done a lot of work
with interests in improving this. And we hope the Commission will also
accept the fact that as amended, if as we hope those amendments are
supported by this committee, that this will be a significant improvement
to the text that we were sent by the Commission, and will move us
towards achieving the political objective. And I think that we do all
agree what the political objective is.

Now just a couple of specific points, if I may.

And the first one concerns the compromise amendment tabled by you,
chairman, on Article 5, which also was the object of one of my own
amendments.  I am in principle happy to go along with your compromise
amendment, which I think seems to have got more favour, because I think
it achieves what we want to do in terms of making this law workable, and
I gave the circumstances under which we wanted to make it workable when
I used the mobile phone example earlier, and I am pleased Mr Berenguer
registered that, but I did remind colleagues that it is perfectly
possible to supply software for a mobile phone on a CD to be installed
later on a piece of programmable apparatus.  And if somebody originates
and patents a piece of software to bring into operation certain
desirable outcomes in terms of the communications or whatever processes
internally and that is patentable then they should be able to distribute
and enforce that patent by distributing products on a carrier. And I
think that is a perfectly reasonable proposal, and I would urge
colleagues to accept that.  I wasn't entirely clear from what Arlene
said as to whether she was going to support that compromise or not, and
it would be interesting if she could state what her final position is on
that.

Now, the other point I wanted to make, because it has come up in
discussions between many people who have been to see us, and in a way
also reflects directly on Mr Berenguer-Fuester's intervention just now. 
It seems to me that, and I come back to the same basis that I talked
about before, that on the basis that the whole object of an invention is
to patent a new development, a new state of the art, which involves
computer software as part of a new invention engaging also other
elements of programmable apparatus, that there is no reason why one
should take a different view on that, in terms of the level of detail od
disclosure, that one does on any other technical or related invention. 
If I propose and patent an idea that is carried out by some sort of
mechanical device, my clear understanding is that I am not required to
provide the detailed drawings, the detailed dimensions, the detailed
specifications, the technical calculations that have led to that result,
the type of material that has been used, the tolerance of the
manufacture, and everything else.  Those are part of my intellectual
property in bringing the invention to market.  Now, Mr Berenguer-Fuester
didn't at all explain to me why a computer-implemented invention should
be any different; because essentially, in requiring that source code be
made public, you are essentially moving into far more detail in
computer-implemented invention than any other sorts of invention.  Now I
don't think a case has been made out for that, at this stage.  It may
well be that that is something that wants to be reviewed later. But to
suggest, as Mr Berenguer-Fuester does, that by rejecting his amendment
56 that we are undermining our whole view about patents I think is a
gross exaggeration, and I don't think that his amendment actually adds
anything to the basic structure of new amendments that we have available
before us, and that I hope the committee will vote on and approve
tomorrow.