Dear Mr Harbour,
thank you for your answer to my e-mail. I appreciate the effort you make.
Malcolm Harbour wrote:
Dear Mr Janke,
Thank you for your letter regarding the vote at the end of last year
on the patentability of computer-implemented inventions (software
patents)in the European Parliament. The European Commission
published the draft Directive in February of last year as it become
increasingly clear that European law on patenting software needed to
be clarified.
I do agree with you. It is very urgent that this issue obtains
clarification. Many small and medium-sized businesses are threatened
by the lack of clarity. This does not only pertain to businesses in
the software field, but any business, since virtually all businesses
are using ICT equipment and software in order to run their business.
The risk for being suit for patent infringement for using software
that violates "invalid" software are risks that small and medium-sized
businesses can not afford to take. The resources to defend themselves
are too high, therefore those businesses are forced to use software by
a small number of corporations, in turn limiting choice, in turn
limiting competition, in turn limiting innovation and fair prices.
The aim of the Directive is to set out and defend the status quo in
Europe following changes to the patent system in the USA and also
planned for Japan.
The status quo is already too close to the USA situation. I just want
to refer to the Bromcom case here in the UK. There is absolutely no
novelty in the patent that would not be regarded by any IT
professional as common sense, however the patent was still granted and
now leads to a prolonged court battle.
There is a clear intention across the EU Member States to see that
Europe does not follow the USA and Japan in allowing widespread
patent availability for software and business methods. Copyright
will remain the principal method of protecting intellectual property
in these cases. I and my UK Conservative colleagues supported the
general line that the Commission took which builds on and clarifies
the existing patent law across the European Union and makes it clear
that only software which forms part of a technological process will
be patentable.
However, the comission clearly does not follow your described goal.
The commision allows far too lax patent requirements in order to
protect small and medium-sized businesses. Small and medium-sized
businesses do not have the funds or resources to battle big
corporations with their armies of lawyers in prolonged trials.
Therefore the idea of patents must go back to its origin --- to
protect the small business. Small businesses can not afford to patent
their ideas all over the world. The process is far too complex and
costly. ANd even with a granted patent, small businesses do not have
the resources to protext their claims against the big corporations.
Therefore patentability should be limited to the cases were innovation
would be hampered without it (i.e. pharmaceuticals which development
and especially approval are so expensive that a monopoly to protect
the investment is justfied).
This will allow patents to be provided for genuine technical
inventions and stimulate European economic development in areas of
economic strength like mobile telephony, digital television and
computer controlled machine tools to name just a few possibilities.
The question is which way will improve innovation and help small and
medium-sized businesses? What will create an environment that is
conductive to entrepeneurship? Most small businesses are founded by
people that have an innovative idea that their previous employer does
not use. However if they are running in a minefield of patents that
they can not afford to buy licenses for, how should they ever startup
their businesses ?
I believe that the radical change of making the patent system more
permissive or more restrictive is unjustified. The legal thresholds
for granting software patents in the USA and Japan are set too low
and recent court cases in the USA have led to patents being granted
for computer-implemented service activities.
I agree with you that the threshold for granting patents in the USA
are far too low.
In Europe, the granting of patents has always required a technical
effect. I agree with the European Commission and the UK Government
that the American approach will not stimulate innovation in Europe.
Why are you then supporting the commision with a draft that creates a
situation that is not unlikely to the situation in the USA ?
Change through a more restrictive approach to the patenting of
generic software, algorithms and business methods creates more
problems than it resolves.
Why? It was tradition, that ideas, algorithm and software could not be
patented. Patents are a granted monopoly. In order for someone to
obtain such a monopoly in a free-market society, there should be a
good justification for it. As I mentioned before, it would be
detrimental if medication would not be developed, because companies
could not recouperate their costs of development and speciafically
approval. However, the software industry is different. The idea of a
progress bar, or the usage of roll call software via standard wireless
networks (as in the Bromcom case) do not justify such a grant of a
monopoly. In general software is very well protected by copyright,
since the implementation of the software is the expensive part not the
"invention" of it. What benefit to the free-market system would such a
monopoly have in contrast with competing companies being encouraged to
innovate in order to distinguish their product by quality of
implementation, support, and price.
The alternative is Microsoft style software that is protected by
patents and lacks in support, stability and security.
It would question the validity of existing patents and discourage
innovation, leading to greater uncertainty in the technology market.
Such an approach would also conflict with national laws in the Member
States; international treaties including TRIPS, and existing practice
in Europe.
I believe it is time to question existing patents that should have
never been granted. Or is it now the plan of the conservatives to
increase government by higher number of patent fees? Also,
international law concerning copyright is very different to the
treaties concerning patents. It is tradition that patents are granted
by each souveran country on their own terms. This argument rather
sounds like an suggestion to follow the developments in the USA. How
otherwise could they change their patent laws without violating
international agreements?
The proposed Directive would set a fair test for software (deciding
whether it has a technical effect) before authorising a patent. Any
technical invention in a field outside software can be patented so it
does not make sense for technical inventions, which happen to use
computers to be excluded from the system. The Parliament is
proposing amendments to clarify the text while ensuring that its
principles are supported. Codification of the existing position will
also avoid raising complicated issues of the validity of existing
patents across Europe or allowing current unpatentable technologies
to claim new patents. This will allow European businesses the chance
to develop ideas with certainty as to their legal position. It will
also reduce the pressure from companies holding permissive American
software patents who wish to gain an extension of their patent rights
in Europe.
The proposed directive does not set a fair test. That is why all the
ammendment by the European Parliament are necessary to remedy this
problem. Codification of the currently wrong position is not a way out
of the problem, but makes it just more difficult for small and
medium-sized businesses to protect themselves. How comes, that the
directive is so heavily sponsored by Microsoft through the Irish
government and not my small and medium-sized business associations.
How comes that in Sweden Nokia is supporting the proposal, but small
and medium sized businesses are warning of the consequences ?
Parliament approved the principle of a clarifying directive by a
substantial majority, thus moving the proposal to its next stage of
negotiations between the EU Member Governments (Council) and the
European Commission. The political objectives of providing the EU
with a patent regime that explicitly excluded software and business
processing was clearly established.
However, European Parliament does not seemed to stand up against the
Commision basically throwing out all ammendment made by the European
Parliament. Also how comes that the Conservative Party in the UK is
not putting more pressure on the Labour government to demand that the
Commission must include the ammendment by the European Parliament in
theior directive. As far as I have heard only the governments of
Germany and Belgium seem to stand up for the European Parliament on
this issue. Isn't the Conservative Party concerned about the
consequences this bad directive from the Commision will have on the
small and medium-sized businesses in the UK?
We will continue to press the Commission and Council to produce a
revised proposal that will achieve its political objectives, be fully
compatible with existing patent law, and provide a clearly understood
regime for inventions.
I really hope you do this, while I am concerned reading the
inconsistencies in your e-mail that your are really doing so.
Further than that I encourage you to step out of the thinking of the
industrial age. Patent laws and the new proposals are still left in
the 19th and early 20th century. The information age needs new ideas
and thinking on these issues. A monopoly granted by laws must have a
good justification. In a free-market society this is not a God-given
right. Actually, interestingly I woudl like to refer you to the US
Constitution. In contast to the current policies in the USA, the
constitution gives a very good spirit for patent and copyright laws in
Article I section 8:
"The Congress shall have Power To ....
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;"
Interestingly the Founding Fathers seemed to have had more wisdom on
this issue than the European Coucil has today. The justification for
the exclusive rights are the promotion of progress of Science and
useful Arts. There is no mentioning of an absolute right, nor is there
any mentioning of property or ownership. It describes the voluntary
and conditional grant of rights by society for the purpose to the
mutual benefit of society.
I believe we are on the dawn of a new age. The innovation that Open
Source is showing us on a daily basis shows that industrial view of
ownership of ideas is not condusive for society nor for small and
medium sized businesses. Without software patents, small and
medium-sized businesses and corporations can compete on a level
playing field. Innovation will increase in unbelieable measures. The
number of small and medium sized business strating up will be
unimaginable. In contrast software patents will sland the competition
unjustifiably towards big multi-national corporations, since only
those organisation have the resources to get the patents, protect the
patents and defend against unjustifiable patent infringment claims.
The small and medium sized businesses and all of the society will
loose without a chance. Innovation will be stifled.
I do not believe I can support such a position with a good conscience,
therefore I am still looking to find the party and candidates that I
can vote for in the enxt election in June.
Yours sincerely,
Malcolm Harbour MEP
Yours sincerely,
Ralph Janke (Dipl.-Inf, M.Sc Computer Science, Certified Manager,
Student LLB, Small business owner)