Tim Jackson

On 3 June 2003, I received this response from Bashir Khanbhai:

From: "Bashir Khanbhai" <bkhanbhai/at\europarl.eu.int>
To: <tim@timj.co.uk>
Subject: Re: Software patenting: request for action
Date: Tue, 03 Jun 2003 11:10:27 +0200

Dear Mr Jackson,
 
Thank you for your letter regarding the upcoming Directive on the
patentability of computer-implemented inventions (software patents)
currently under discussion in the European Parliament. 
 
The European Commission published the draft Directive in February of last
year as European law on patenting software needed to be clarified.  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.  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 support the general line that the
Commission has taken 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.  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. 
 
Contrary to the impression given by some misguided lobbying within the
Parliament there is no intention whatsoever to allow generic patenting of
software in Europe.
 
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. 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.  Change through a more restrictive approach
to the patenting of generic software, algorithms and business methods
creates more problems than it resolves. 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.
 
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.
 
Kind regards,
 
Bashir Khanbhai MEP