The text of a draft letter urging the Irish government not to confirm the swpatents directive.
NOTE
Here is the letter as sent (in text format --- I latexed it up for the posted letter). I did some last minute editorializing before sending it, so I apologise if your favourite part got removed. I didn't have much time and I had to get it in some kind of consistent state. The pdf is here:
The text of the letter is now read-only to ensure it reflects the letter that was sent on 2004 09 18. Comments can still be added at the bottom.
Letter
Subject: European Patent Directive (2002/0047 COM (COD))
To an Tánaiste, Mary Harney,
On September 24th, the Council of the European Union will be asked to formally approve the European Patent Directive (2002/0047 COM (COD)). The current text of this directive inadvertently permits the patenting of software ideas; an approach comprehensively rejected by the European Parliament in September 2003. We urge the Council to reinstate the Parliament's amendments, which it removed earlier this year, or request that the Council withdraw this directive from the agenda of the next Council meeting. At the very least, we request that the item be transfered from the A-list of items for formal approval, to the list of B-items for discussion.
As is now broadly acknowledged by economists, software patents impede innovation and prevent SMEs, which constitute most of Europe's indigenous software industry, from competing. For example, see the recent Price Waterhouse Cooper report "Rethinking the European ICT Agenda: Ten ICT-breakthroughs for reaching Lisbon goals" (2004), or the US Federal Trade Commission's report "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy" (2003).
The current text of the directive claims to prevent software idea patenting. In doing so, it concedes the negative consequences of allowing such patents and acknowledges the level of concern in Europe regarding this issue. In spite of these claims, the directive itself does nothing to stop software ideas from being patented. The Dutch Parliament has already withdrawn their support for the Council's formulation of the directive, and we request that the Irish government also change its position in advance of the coming vote.
History of the Directive
Originally drafted in 2002 by the European Commission's Directorate for the Internal Market, the directive "on the patentability of computer-implemented inventions" was intended to harmonise and unify the criteria for patentability across Europe. Contrary to its stated intent, the Commission produced a text which failed to specify precisely what constitutes a patentable invention. For instance, the text relies on the ambiguous use of the term "technical" in determining patentability, yet the term "technical" is never defined. It is clear that this ambiguity would lead to software idea patents being granted.
On September 24th, 2003, the European Parliament considered the directive. After substantial debate, the legislators applied numerous amendments to the text, fixing many of its problems. The ambiguity with respect to the term "technical" was resolved and appropriate measures were added to ensure that software ideas could not be patented. Other useful provisions of this draft assured the right to develop interoperable software packages and stipulated that data processing is not a "field of technology". This last provision meant that the exclusion of software ideas from patentability could not be subverted by a disingenuous reinterpretation of the TRIPs treaty.
On May 18th, 2004, the Council of Ministers considered the directive and, under the guise of a "political compromise", removed almost all of the Parliament's amendments. This reverted the directive to something close to its original form. Although there were a handful of amendments that appeared to exclude software ideas from the patent system, they would not, in fact, have this effect. Regrettably, the new draft opens the way for software idea patenting.
Promoting Innovation
Although at the meeting in May, the Irish government voted in favour of the Council's draft, it is still possible for the Irish government to change its position. In a national parliamentary vote, the Netherlands called for their Minister to convert their vote to an abstention after they found they had been misled about the directive. While the Council has conducted a preliminary vote showing political agreement on the text, members of the Council may individually act to transfer the item off the list of those designated for adoption at the next meeting. They may also change their votes on the political agreement.
For the sake of innovation and the SMEs which make up most of Europe's software industry, please reinstate the Parliament's amendments, or allow more time for debate by withdrawing this directive from the agenda of the next Council meeting. If the directive could at least be transferred to the B-list of agenda items, it would do much to convey the good faith efforts of the Council in their pursuit of promoting innovation.
Yours sincerely,
Dr. Malcolm Tyrrell, IFSO Committee Member.
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