From: Tim Jackson <tim@timj.co.uk>
To: "Bashir Khanbhai" <bkhanbhai/at\europarl.eu.int>
Subject: Re: Software patenting: request for action
Date: Tue, 3 Jun 2003 23:08:40 +0100
Dear Mr. Khanbai,
Thank you most sincerely for your prompt and extensive response on the
matter of software patenting. I very much appreciate your time and
attention to this matter. However, your response raises some points that I
have difficulty reconciling; I shall enumerate them below.
1) I, along with many technically-knowledgeable colleagues, fail to
understand what area of existing patent convention requires
"clarification". To me, EPC Art. 52(2) is absolutely crystal clear:
patents on software are not permitted. The background to this clause has
been convincingly researched and re-asserted many times over the past
decades. It is only the (arguably illegal) actions of national patent
offices in deliberate attempts to muddy the water and force a change of
policy by action (with their meaningless use of terms like "as such" and
"further technical effect", such as in the context of "a computer program
is not a computer program if it is not a computer program 'as such'") that
have created uncertainty in Europe. (This is what I was referring to by
semantic and logical acrobatics in my original letter.)
What is required is a Directive reaffirming this longstanding Convention
and clarifying that existing patents on software which breach EPC Art.
52(2) are unenforceable and/or invalid and that no further claims along
these lines will be permitted. In the absence of such unambiguous wording,
it seems to me, therefore, that the proposed Directive is in fact a veiled
attempt to expand the scope of patentability under the guise of
"clarification". Indeed, in the course of discussion, one of your
Parliament colleagues in the Eastern region has candidly stated to me that
this is his understanding also.
2) You appear to be relying on assertions given by certain Parliament
lobbyists that restrictions such as a requirement that patentable software
achieve a "technical effect" will limit the availability of software
patents. I cannot reconcile this with your statement that "...there is no
intention whatsoever to allow generic patenting of software", because
"technical effect" is a term which has no practical meaning when applied
to software; ergo, it is a semantic loophole which will allow any software
patent application to succeed by mere inclusion of wording in the claim
which implies a nominal "technical effect".
To support this reasoning, may I refer you (by way of just one example) to
a document provided by the European Patent Office itself:
http://www.european-patent-office.org/tws/appendix6.pdf
which states quite explicitly that "programs, even in abstract, can show a
'technical effect'". This is first-hand proof of the patent lobbyists'
'sleight of hand'.
I invite you also to examine some of the current patents which have
already been allowed by various member states which are quite clearly
software patents, plain and simple. For your convenience, some examples
are listed at:
http://swpat.ffii.org/patents/samples/index.en.html
Therefore, I believe that the current proposal will, in effect, achieve
exactly the "radical change" towards a permissive system allowing
business/logic patents (in a similar way to the disastrous situation in
the U.S.) which you agree is inappropriate. I urge you to challenge this
clear example of patent lobbyists "cocking a snook" at the Parliament, by
proposing "restrictions" which they know full well are no restrictions at
all according to their existing absurd logic.
3) Additionally, you refer to TRIPS, stating that you believe that to
allow generic algorithm patents would be in breach of this treaty.
However, given that TRIPS Article 27(1) requires that patents be available
"in all fields of technology", your assertion appears to lie ill at ease
with the "technical effect" requirement which you believe will protect
business and individuals in Europe from a profusion of patent claims on
the building blocks of software innovation.
To summarise, I agree in spirit with many of the points you make about the
need for consistency on complex issues and a clear legal framework for
Europe. However, I contest that in its current form, the only certainty
which the proposed Directive will afford is the certainty that for those
who can afford it, patents will be available on arbitrary logical
processes implemented via software, which will in turn allow such entities
to exert a chilling influence on related areas of innovation.
May I stress once again that as an electrical/electronic engineer by
degree, software developer by practice and IT manager by employment, I
have every desire to see innovation in software, but I do not believe the
current proposed Directive is in the interests of science or innovation,
preferring the commercial demands of a very narrow subset of minority
interests. The fact that I, as an individual, have gone to some trouble to
research this demonstrates, I hope, the depth of my feeling on this
matter. Unlike many of the pro-patent lobbyists, I am driven not by
commercial financial interests but by a profound belief based on my years
of hands-on experience in this area, that the proposed Directive is
ethically wrong and for the Parliament to pass it (without amendments
similar to those proposed by the FFII) would be a grave error and a great
disservice to the very people of the EU for whom it exists to serve.
Therefore, I urge you to re-examine the evidence and proposals in the
light of the points raised here, and adopt a strong stance against
software patents with renewed vigour, in the interests of intellectual
freedom, a free market, freedom to innovate by business and individuals
and the promotion of entrepreneurial ventures both in this region and
beyond.
Many thanks again for your attention to this matter, and I await your
reply with interest.
Yours sincerely,
Tim Jackson