Thursday

23rd Nov 2017

Opinion

Parliament should pass resolution on software patents

After the lobbying frenzy in the build-up to the 6 July vote on software patents, MEPs must have needed this year's summer break even more than usual.

Now that the parliament resumes its work, different ideas will be discussed as to what should happen next.

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  • "The resolution could optionally call on the European Commission to submit a new proposal" (Photo: Florian Mueller)

Let's quickly recall: In March, the Council of the European Union adopted a common position on a "directive on the patentability of computer-implemented inventions".

Its purpose was to ratify the granting practice of the European Patent Office. Critics of the proposal said that it would, like the original proposal by the European Commission in 2002, effectively legalize software and e-commerce patents in Europe.

Many computer programmers are afraid that software patents can be used against them by larger competitors and product less entities, and point out that today's largest software companies became what they are without owning a single patent for many years.

In September of 2003, the European Parliament had made numerous "abolitionist" amendments, which were not reflected in the common position.

In February, the parliament asked the European Commission to restart this legislative process, but that request was declined. On 6 July, 95 percent of MEPs present rejected the common position and thereby finished the legislative process off.

Competitive advantage over USA and Asia

In my opinion, the outright rejection of the Council's common position was the best procedural decision at the time.

As President Borrell said in a press conference, it was "a milestone in the history of a parliament that lives up to its task and exercises its rights".

He also left no doubt that the parliament thereby had hit back at the Council and the Commission for ignoring its request for a fresh start.

Europe is fortunate, and many in the USA and Asia are jealous, because article 52 of the European Patent Convention expressly excludes software from patentability. That's why we have hardly any software patent litigation over here. The parliament preserved that major competitive advantage.

Patent offices disobey the law

However, the European Patent Office and national patent systems keep issuing patents against the law.

National courts, such as the British High Court in the recent Halliburton vs. Smith case or the German Bundesgerichtshof with its natural forces doctrine, declare such software patents invalid within their respective jurisdictions.

However, until they are invalidated, patents can be used to intimidate the innocent.

In the first reading on the directive, the parliament proposed to put an end to that flagrant bending of the law, and wanted to rein in a system that is basically its own judge and beyond parliamentary control.

Shortly before the second reading vote, 21 amendments were proposed that could really serve as a beacon for software patentability worldwide. Those amendments came from several groups, and from long lists of signatories within other groups.

A simple resolution with a strong effect

For the parliament, it would be feasible with a minimum of logistical effort to express its majority will.

The parliament could pass a short and simple resolution that calls on the administrative council and the president of the European Patent Office to take the appropriate measures so that the existing law be complied with, in the spirit of those 21 amendments.

Those amendments have been published in all of the EU's languages and could be easily referenced.

There would be no need for much debating or lobbying, as of all that has already taken place to an extent that was probably too much for most people's taste.

Transparency and guidance

The benefits would be many, and huge. First of all, the parliament could prove once again that it is a constructive force, and that others are to blame for the derailment of the directive.

The resolution could optionally call on the European Commission to submit a new proposal in accordance with its suggestions.

A roll-call vote would show citizens throughout the EU where their directly elected representatives stand on the issue.

The administrative council of the EPO, to which the resolution would be forwarded, holds all the power. That council elects the president of the EPO, approves the EPO's internal guidelines, and appoints judges to the EPO's in-house courts ("boards of appeal"). The members of that administrative council, most of whom are senior ministry officials from EU member countries, also have a lot of influence on their national patent systems.

However, the repercussions would go way beyond the direct targets.

Worldwide impact of resolution

Lawmakers in EU member countries could pass national legislation in the spirit of the European Parliament’s suggestions, and the Brussels assembly itself would lend such initiatives a lot of advance credibility and legitimacy.

The US Congress is presently working on a patent reform bill that would primarily benefit large corporations. Those politicians and citizens in America who fight for balanced intellectual property rights deserve to be further encouraged.

In India, South America, South Africa and other countries and regions, the jury is still out on software patents. There is some awareness for the issues involved. If Europe doesn't send a signal to the rest of the world, then the US government might just have its way.

President Bush has chosen a Microsoft lobbyist to become the permanent representative of the United States to the European Union, which says something about its perspective on foreign trade.

Community patent, a separate issue

As a big believer in the idea of a united Europe, I find the notion of a community patent very appealing per se. However, I can also understand the concerns that various countries have, and without unanimity in the Council, it won't fly.

Some have said that Europe should firstly harmonize its patent law in general, and then look at specific sectors such as software patents. The same people who said that were also in favour of approving the Council's common position in parliament, so there's a contradiction.

A community patent directive could only achieve its stated goal of making Europe more competitive if it's part of, or a subsequent measure to, a fundamental paradigm shift in patent policy.

The EPO is now at an annual rate of 180,000 new patent applications, about half of which result in the issuance of a patent.

Every patent is a 20-year monopoly, and most of those monopolies aren't justified because the respective "inventions" don't represent major breakthroughs.

A harmonization of European patent law would have to lead to smarter patent policy in general, and economic research that indicates negative effects of today's patent systems on innovation would have to be heeded.

But a parliamentary resolution on software patents would be of value for the reasons I outlined, independently from whatever may or may not happen with the community patent.

The author founded the NoSoftwarePatents.com campaign last year. He can be reached at florian.mueller@nosoftwarepatents.com

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