Letter to Michéal Martin, the new Minister for Enterprise, Trade, & Employment. Based entirely on SoftwarePatents/CouncilLetter1.
Page edits locked when the letter sent (2004 10 28). Comments can still be added below. PDf version unnecessary, there were no changes to the content when the letter was converted to LaTeX.
Letter
Subject: European Patent Directive (2002/0047 COM (COD))
To Michéal Martin,
Congratulations on being appointed to your new position as Minister for Enterprise, Trade and Employment.
In your position as Ireland's representative on the Council of the European Union, Competitiveness Council, you will have an opportunity to vote on the draft Directive on the patentability of computer-implemented inventions (2002/0047 COM (COD)). We would like to express our concern that the current wording of the directive will allow unlimited patenting of software ideas; an approach comprehensively rejected by the European Parliament in September 2003. We strongly advocate the reinstatement of the Parliament's amendments, which were overturned earlier this year by the Council.
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 in its present form will not stop software ideas from being patented.
Software has historically been excluded from the patent system in Europe. It has been viewed as being closer to the expression of mathematical or business ideas, and not as an invention.
Originally drafted in 2002 by DG Internal Market of the European Commission, the proposal for a directive "on the patentability of computer-implemented inventions" was intended to harmonise and unify the criteria for patentability across Europe. Regrettably, 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. Many analysts believe that such 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".
On May 18th, 2004, the Competitiveness Council considered the directive and removed almost all of the Parliament's amendments. The resulting draft, described as a "political compromise", reverted the directive to something close to its original form. The new draft claims to exclude software from patentability by relying on a meaningless distinction between software and software which has a 'technical effect'.
Since this meeting, the Dutch parliament has instructed their Minister to change their supporting vote to an abstention having found that they were misled. We would urge the Irish government, which also voted in favour of the Council's amendments, to similarly change their position.
For the sake of innovation and the SMEs which make up most of Europe's software industry, we strongly urge you to reinstate the Parliament's amendments.
Yours sincerely,
Comments
The letter has been sent, but these comments may still be useful for the next letter. Not everything could be addressed in this letter.
I received a confirmation letter yesterday (2004 11 02) stating that the letter will be shown to the Minister on his return (from wherever he is just now).
Are we explaining the background sufficiently?
Software has always been patent-free in europe. Are the reasons as stated in the History section?
It is the case that patents on software in a device are patents on software. Should we make this point after the "meaningless distinction" paragraph?
* Another line that also elucidates is "a patent on software in a device is a patent everywhere." Think about that. It's comment on the nature of the Directive, is a very good main thing and a very good first thing to present the unversed with. Then proceed to explain how there's no distinction and how this is the nature of abstraction: it can't ever be somehow magically confined to a device. All abstractions are abstract. Duh, but this is the sequence of presentation that makes it clear. So then you say a patent on software in a device is a patent on software, just so long as it's established what we're talking about.
Say something about the parliament amendment that made sure TRIPS could not be used as an excuse to subvert the directive?
I'd like to see matters put a bit more starkly to emphasise the potential consequences of an ill-considered decision. After all, that's the reason for the amendments and (what I refer to as the "Sanity clauses"). To someone not technically up to speed, I fear the letter isn't generally 'in your face' enough... thoughts? Mel
Here's some rhetoric I composed a little while back (Seth):
Click here to see my usage of this rhetoric on the nosoftwarepatents site: ![[WWW]](/wiki-htdocs/modern/img/moin-www.png){kind=small}
http://nosoftwarepatents.com/phpBB2/viewtopic.php?p=492#492
Pure abstraction is not patentable, even if it expresses a breakthrough discovery. This understanding is stronger in the European tradition (though these days this understanding seems unfortunately to be located outside of the EU patent establishment, despite what the law says). Europe is presently going through paroxysms as their tradition confronts privileged interests who are trying every form of political trickery and deceit to enable the patenting of algorithms in the European Union. A particularly ludicrous case in point is the Directive on the Patentability of Computer-Implemented Inventions, which attempts to enable software patents when they are part of a "computer-implemented invention." There's absolutely no difference between patenting software in a device and patenting software. Software is abstract. A patent on software in a device is a patent everywhere. That's the nature of abstraction.
Those behind the Directive on Computer-Implemented Inventions have decided that the reason why theory, etc. are excluded from patentability is not because they are abstract, but because patentable subject matter has a nebulous, undefined "technical effect." They have fallen under the illusion that patent policy is foremost about giving exclusive rights as a form of protection, rather than about what would stifle innovation and what wouldn't. The members of the patent establishment have succumbed to the same fallacy we see in America -- to such an outrageous extent that they have forgotten why patents on abstraction are ridiculous.
This confusion has led them to fail to draw a distinction between instructions for computers (software) and concrete methods that show us how to employ natural forces in new ways.
The simplest way to explain how software is different is to look at what the computer is. A computer doesn't do anything but logic. It's different from other devices because it's designed to automate abstraction. When you look at it that way, you can see clearly that software is nothing but abstract logic, instructions designed for a logic device. Software is therefore the same as math or scientific laws, something anybody can "implement" without considering for a moment that somebody might have a claim on it as a concrete discovery.