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Subject: Two texts from Arlene McCarthy:
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- A letter in the Financial Times
- A document to European MEPs

thanks to F.Latrive

Franck
----------------------------------------------

LETTERS TO THE EDITOR: Let's clarify what we're protecting
By Arlene McCarthy
Financial Times; Sep 03, 2003

/
 From Arlene McCarthy MEP.

/Sir, As the European parliament's draftsperson on the European 
Commission's proposal for an EU directive on the patentability of 
computer-implemented inventions, I must correct the suggestion by my MEP 
colleagues Malcolm Harbour and Joachim Wuermeling that we are 
legislating for "software patents" (Letters, September 1). It is 
important to underline that the proposal concerns only patents for 
"computer-implemented inventions".

I have made it clear in my amendments to the Commission proposal that we 
do not support patents for software as such but patents for genuine 
computer-implemented inventions. I have explicitly excluded patents for 
business methods, algorithms or mathematical model and it is clear that 
computer programs as such are not patentable. It is vital to make this 
clear distinction, as those campaigning to wreck this directive base 
their campaign on an opposition to software patents.

Mr Harbour and Mr Wuermeling are right to say that doing nothing is not 
an option. Without this directive, the European Patent Office (EPO) and 
national patent offices will continue to hand out patents for computer- 
implemented inventions; indeed the EPO has already handed out 30,000 
patents. The option of doing nothing will not change this practice but 
rather encourage the drift towards a US-style of patenting.

The Court of Appeals for the Federal Circuit (CAFC) in the US ruled in 
the State Street Bank case that the transformation of data, representing 
discrete dollar amounts by a machine via a series of mathematical 
calculations into a final share price, was patentable. The European 
Union directive would not support a patent for such a business methods.

Equally, it would be wrong to deny most innovative companies the 
benefits of patent protection for their research and development 
investments. Otherwise, in an increasingly cut-throat and competitive 
global marketplace, it will be Japan and the US that cash in on 
licensing fees and reap the benefits of their R&D investment. Indeed, 
the Japanese prime minister's office launched this summer a 
comprehensive national programme to promote patents as national assets 
in response to a services account deficit of Y102.1bn owed to the US.

The Commission, however, has an opportunity with this legislation to 
make patents for computer-implemented inventions accessible and 
affordable for small and medium-sized companies. They are not aware of 
the potential that patents can bring to their business and often they 
are on the receiving end of infringement lawsuits.

Europe would do well to assist SMEs by setting up a defence fund and 
introducing special rules for legal costs. If SMEs can secure patents 
for their inventions and defend them against industry giants, this will 
also help dispel the myth that patents are only for big companies with 
deep pockets and their teams of attorneys.

I hope the Commission and the member states can rise to this challenge.

Arlene McCarthy, European Parliament Rapporteur on the Directive for the 
Patentability of Computer-Implemented Inventions
 
 

 
*Find this article at:*
http://search.ft.com/s03/search/article.html?id=030903001056
 

-------
*FACTSHEET - EU rules for patents for computer-implemented inventions

**The Misinformation Campaign: Claims by the Free Software Alliance

The Myths - The Truth

Myth:         This is a proposal for a software patent directive

Truth:                *The proposal is for a patent to cover_ 
computer-implemented inventions

_In law, software, as such, is not patentable. Just as an invention in 
the physical world can enjoy patent rights so too can an invention 
relying on a computer application.

This is not new. The European Patent office and national patent offices 
have already granted patents for computer-implemented inventions. The 
proposal applies strictly to inventions which must satisfy the 
conditions of any invention; must be new, involve an inventive step and 
must make a technical contribution providing a technical solution to a 
problem.


*Myth:       The proposal would impose US-style unlimited patentability 
of algorithms and business methods such as Amazon's 'one-click' shopping.

Truth:              *In fact the Parliament's objective is to stop the 
drift by the EPO and national patent offices to patent business methods. 
The Parliament's proposal is stronger than current law and practice of 
the EPO and is explicitly_ excluding_ the patentability of business 
methods and algorithms with the introduction of a new article and 
recitals, specifically Article 4a and recitals 13a and 13c

Amazon's 'one-click' shopping_ would not_ be patentable under the terms 
of the parliament's proposals.

/Article 4a

Exclusions from patentability:

A computer-implemented invention shall not be regarded as making a 
technical contribution merely because it involves the use of a computer, 
network or other programmable apparatus.  Accordingly, inventions 
involving computer programs which implement business, mathematical or 
other methods and do not produce any technical effects beyond the normal 
physical interactions between a program and the computer, network or 
other programmable apparatus in which it is run shall not be patentable.

/Recital 13a

/(13a) However, the mere implementation of an otherwise unpatentable 
method on an apparatus such as a computer is not in itself sufficient to 
warrant a finding that a technical contribution is present.  
Accordingly, a computer-implemented business method or other method in 
which the only contribution to the state of the art is non-technical 
cannot constitute a patentable invention.

Recital 13c

(13c) Furthermore, an algorithm is inherently non-technical and 
therefore cannot constitute a technical invention.  Nonetheless, a 
method involving the use of an algorithm might be patentable provided 
that the method is used to solve a technical problem.  However, any 
patent granted for such a method would not monopolise the algorithm 
itself or its use in contexts not foreseen in the patent.


/*Myth:      Programmes and ISPs will be regularly sued for patent 
infringement.

Truth:               *The Parliament's proposal reinforces the right of 
computer programmers and software developers to engage in reverse 
engineering practices or to achieve interoperability as currently 
permitted under exceptions to the Software Copyright Directive.


*Myth:              Software patents kill efficient software development.

Truth:     *Patents for computer-implemented inventions do not kill 
companies. Some 30,000 patents have already been handed out in this area 
by the European Patent Office, while at the same time Opensource 
software companies are flourishing with one company recently posting a 
50% increase in world-wide shipment of its products. The Parliament's 
proposal welcomes the development and growth of open source software to 
ensure competition in the market place and prevent the dominance of any 
one player.

The Parliament's rapporteur is asking the Commission to monitor the 
impact of this law on both SMEs and Opensource software and prevent any 
abuse of the patent system as regards computer-implemented inventions. 
On the contrary, good patent law for computer-implemented inventions 
will protect software development companies and give them a return on 
their investment through license fees, enabling them to grow their 
company and provide alternatives to the dominance of global, 
multinational companies in the field of computer-implemented inventions.


*Myth:   The proposal would legalise thousands of mathematical rules and 
business methods patents that have been granted by the European Patent 
Office against the letter and spirit of the law, making it impossible 
for national courts to revoke these patents.


Truth:         *This is both confusing and wrong. Patents handed out by 
the EPO, for computer-implemented inventions have been granted on the 
basis of an interpretation of the European Patent Convention (EPC).  
They therefore already enjoy legal status and where appeals against them 
have been launched, far from seeking to revoke these patents, national 
courts have in the majority of cases slavishly followed the decision of 
the EPO.

The Parliament's amendments, in proposing a more restrictive and clearer 
interpretation of the law on the patentability of computer-implemented 
inventions is therefore "not legalising patents", but seeking to ensure 
that only genuine inventions enjoy patents in the future. An EU law also 
opens up the avenue of appeals to the European Court of Justice to 
challenge bad patent decisions in a transparent and accountable way. It 
therefore enables the creation of European case law enacting the 
Parliament's demands to ensure the exclusion of the patenting of the 
business methods. 


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<div><font face="Times" size="+1" color="#000000"><br>
- A letter in the Financial Times<br>
- A document to European MEPs<br>
<br>
thanks to F.Latrive<br>
<br>
Franck<br>
----------------------------------------------<br>
<br>
LETTERS TO THE EDITOR: Let's clarify what we're protecting<br>
By Arlene McCarthy<br>
Financial Times; Sep 03, 2003<br>
<br>
<i><br>
From Arlene McCarthy MEP.<br>
<br>
</i>Sir, As the European parliament's draftsperson on the European
Commission's proposal for an EU directive on the patentability of
computer-implemented inventions, I must correct the suggestion by my MEP
colleagues Malcolm Harbour and Joachim Wuermeling that we are
legislating for "software patents" (Letters, September 1). It is
important to underline that the proposal concerns only patents for
"computer-implemented inventions".<br>
<br>
I have made it clear in my amendments to the Commission proposal that
we do not support patents for software as such but patents for genuine
computer-implemented inventions. I have explicitly excluded patents for
business methods, algorithms or mathematical model and it is clear that
computer programs as such are not patentable. It is vital to make this
clear distinction, as those campaigning to wreck this directive base
their campaign on an opposition to software patents.<br>
<br>
Mr Harbour and Mr Wuermeling are right to say that doing nothing is not
an option. Without this directive, the European Patent Office (EPO) and
national patent offices will continue to hand out patents for computer-
implemented inventions; indeed the EPO has already handed out 30,000
patents. The option of doing nothing will not change this practice but
rather encourage the drift towards a US-style of patenting.<br>
<br>
The Court of Appeals for the Federal Circuit (CAFC) in the US ruled in
the State Street Bank case that the transformation of data, representing
discrete dollar amounts by a machine via a series of mathematical
calculations into a final share price, was patentable. The European
Union directive would not support a patent for such a business methods.<br>
<br>
Equally, it would be wrong to deny most innovative companies the
benefits of patent protection for their research and development
investments. Otherwise, in an increasingly cut-throat and competitive
global marketplace, it will be Japan and the US that cash in on
licensing fees and reap the benefits of their R&amp;D investment.
Indeed, the Japanese prime minister's office launched this summer a
comprehensive national programme to promote patents as national assets
in response to a services account deficit of Y102.1bn owed to the US.<br>
<br>
The Commission, however, has an opportunity with this legislation to
make patents for computer-implemented inventions accessible and
affordable for small and medium-sized companies. They are not aware of
the potential that patents can bring to their business and often they
are on the receiving end of infringement lawsuits.<br>
<br>
Europe would do well to assist SMEs by setting up a defence fund and
introducing special rules for legal costs. If SMEs can secure patents
for their inventions and defend them against industry giants, this will
also help dispel the myth that patents are only for big companies with
deep pockets and their teams of attorneys.<br>
<br>
I hope the Commission and the member states can rise to this challenge.<br>
<br>
Arlene McCarthy, European Parliament Rapporteur on the Directive for
the Patentability of Computer-Implemented Inventions<br>
&nbsp;<br>
&nbsp;<br>
<br>
</font><font face="Arial" size="-3" color="#000000">&nbsp;<br>
</font><font face="Verdana" color="#000000"><b>Find this article at:</b></font><font
 face="Arial" size="-3" color="#000000"><br>
<a class="moz-txt-link-freetext" href="http://search.ft.com/s03/search/article.html?id=030903001056">http://search.ft.com/s03/search/article.html?id=030903001056</a></font><font
 face="Times" size="+1" color="#000000"><br>
&nbsp;</font></div>
<div><font face="Times" size="+1" color="#000000"><br>
</font></div>
<div><font face="Times" size="+1" color="#000000">-------</font></div>
<div><font face="Arial" size="+1" color="#000000"><b>FACTSHEET - EU
rules for patents for computer-implemented inventions<br>
<br>
</b></font><font face="Arial" color="#000000"><b>The Misinformation
Campaign: Claims by the Free Software Alliance<br>
<br>
The Myths - The Truth<br>
<br>
Myth:<x-tab> </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab>This is a proposal for a
software patent directive<br>
<br>
Truth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab></b>The proposal
is for a patent to cover<u> computer-implemented inventions<br>
<br>
</u>In law, software, as such, is not patentable. Just as an invention
in the physical world can enjoy patent rights so too can an invention
relying on a computer application.</font></div>
<div><font face="Arial" color="#000000"><br>
This is not new. The European Patent office and national patent offices
have already granted patents for computer-implemented inventions. The
proposal applies strictly to inventions which must satisfy the
conditions of any invention; must be new, involve an inventive step and
must make a technical contribution providing a technical solution to a
problem.<br>
<br>
<br>
<b>Myth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab>The proposal would impose US-style
unlimited patentability of algorithms and business methods such as
Amazon's 'one-click' shopping.<br>
<br>
Truth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab></b>In fact the
Parliament's objective is to stop the drift by the EPO and national
patent offices to patent business methods. The Parliament's proposal is
stronger than current law and practice of the EPO and is explicitly<u>
excluding</u> the patentability of business methods and algorithms with
the introduction of a new article and recitals, specifically Article 4a
and recitals 13a and 13c<br>
<br>
Amazon's 'one-click' shopping<u> would not</u> be patentable under the
terms of the parliament's proposals.<br>
<br>
<font size="-1"><i>Article 4a<br>
<br>
Exclusions from patentability:<br>
<br>
A computer-implemented invention shall not be regarded as making a
technical contribution merely because it involves the use of a computer,
network or other programmable apparatus.&nbsp; Accordingly, inventions
involving computer programs which implement business, mathematical or
other methods and do not produce any technical effects beyond the
normal physical interactions between a program and the computer,
network or other programmable apparatus in which it is run shall not be
patentable.<br>
<br>
</i>Recital 13a<br>
<br>
<i>(13a) However, the mere implementation of an otherwise unpatentable
method on an apparatus such as a computer is not in itself sufficient to
warrant a finding that a technical contribution is present.&nbsp;
Accordingly, a computer-implemented business method or other method in
which the only contribution to the state of the art is non-technical
cannot constitute a patentable invention.<br>
<br>
Recital 13c<br>
<br>
(13c) Furthermore, an algorithm is inherently non-technical and
therefore cannot constitute a technical invention.&nbsp; Nonetheless, a
method involving the use of an algorithm might be patentable provided
that the method is used to solve a technical problem.&nbsp; However, any
patent granted for such a method would not monopolise the algorithm
itself or its use in contexts not foreseen in the patent.<br>
<br>
<br>
</i></font><b>Myth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab>Programmes and ISPs will be
regularly sued for patent infringement.<br>
<br>
Truth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab></b>The
Parliament's proposal reinforces the right of computer programmers and
software developers to engage in reverse engineering practices or to
achieve interoperability as currently permitted under exceptions to the
Software Copyright Directive.<br>
<br>
<br>
<b>Myth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab>Software patents
kill efficient software development.<br>
<br>
Truth:<x-tab>&nbsp;&nbsp;&nbsp;&nbsp; </x-tab></b>Patents for computer-implemented
inventions do not kill companies. Some 30,000 patents have already been
handed out in this area by the European Patent Office, while at the
same time Opensource software companies are flourishing with one
company recently posting a 50% increase in world-wide shipment of its
products. The Parliament's proposal welcomes the development and growth
of open source software to ensure competition in the market place and
prevent the dominance of any one player.<br>
<br>
The Parliament's rapporteur is asking the Commission to monitor the
impact of this law on both SMEs and Opensource software and prevent any
abuse of the patent system as regards computer-implemented inventions.
On the contrary, good patent law for computer-implemented inventions
will protect software development companies and give them a return on
their investment through license fees, enabling them to grow their
company and provide alternatives to the dominance of global,
multinational companies in the field of computer-implemented inventions.<br>
<br>
<br>
<b>Myth:<x-tab>&nbsp;&nbsp; </x-tab>The proposal would legalise thousands of
mathematical rules and business methods patents that have been granted
by the European Patent Office against the letter and spirit of the law,
making it impossible for national courts to revoke these patents.<br>
<br>
<br>
Truth:<x-tab> </x-tab><x-tab>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </x-tab></b>This is both
confusing and wrong. Patents handed out by the EPO, for
computer-implemented inventions have been granted on the basis of an
interpretation of the European Patent Convention (EPC).&nbsp; They therefore
already enjoy legal status and where appeals against them have been
launched, far from seeking to revoke these patents, national courts
have in the majority of cases slavishly followed the decision of the
EPO.</font></div>
<font face="Arial" color="#000000"><br>
The Parliament's amendments, in proposing a more restrictive and
clearer interpretation of the law on the patentability of
computer-implemented inventions is therefore "not legalising patents",
but seeking to ensure that only genuine inventions enjoy patents in the
future. An EU law also opens up the avenue of appeals to the European
Court of Justice to challenge bad patent decisions in a transparent and
accountable way. It therefore enables the creation of European case law
enacting the Parliament's demands to ensure the exclusion of the
patenting of the business methods.&nbsp;<br>
</font><font face="Times" size="+1" color="#000000"><br>
</font>
</body>
</html>

--------------030306030105090309030203--


