Brussels 03/06/2005 (Agence Europe) - The Green/EFA and EPP/ED groups on 2 June organised two simultaneous hearings on the proposed directive on the patentability of computer-implemented inventions. Two camps are battling over software patentability issues, systems interoperability and data processing. Faced with intense and even aggressive lobbying, MEPs are trying to find the right policy balance that will allow the legal clarity and security that are indispensable to economic operators. The legal affairs committee will vote on the Rocard report on 20 and 21 June and a second reading is scheduled for the July plenary.
“Most EPP/ED members want to keep the status quo”, said Piia-Noora Kauppi of Finland. This was the European Patent Convention signed in Munich in 1973 and case law from the European Patent Office (EPO). There were “borderline cases where things aren't clear”, she said, and it was necessary to avoid “differing interpretations” without “plunging into major philosophical discussions”. EPO representative Theodora Karamanli explained that the “current trend” in her organisation's case law was towards the application of “very strict criteria”. “The emphasis is on the technical problem to be solved”, and this should develop in “the direction set by the Council's common position”, she added. In the same hearing, Alain Strowel of the Saint-Louis University Faculties in Brussels, pressed a message of “prudence” in advising against “changing the current system”. He said he did not well understand the notion of “the forces of nature” used by rapporteur Michel Rocard (PSE, France) in excluding software from patentability (EUROPE 8954). To the question raised by German Christian Democrat Joachim Wuermeling on the exclusion of data processing suggested by the rapporteur, Alain Strowel replied that “if we exclude everything we shall be going very far” and cited the example of an innovation “without technical effect” in the field of medical imaging that might then no longer be patentable. Juergen Betten, founder of a German company specialising in intellectual property rights, felt that the 30,000 patents granted by the EPO for inventions involving software had “not braked” innovation. For him, patents were the only way to effective protection and the definition of technical character should be left as at present. To a question from German Christian Democrat Klaus-Heiner Lehne on systems interoperability, Mr Betten replied that “the issue has been resolved” and that he did not see a need to intervene.
The Green/EFA hearing attempted to evaluate the impact that software patentability would have on open source software. “I hope that we will succeed in protecting open-source software from patentability”, said Eva Lichtenberger (Austria). The “number of individual cases” presented since the Commission's initial proposal showed that software patentability was a problem, she said, whilst “everybody is satisfied with the protection afforded by copyright in pursuing software development goals”. “Consumer protection”, especially in systems interoperability, was one of the challenges for future European legislation. “We are seeing the clash of two worlds who are not speaking to each other” said Sun Mircrosystems Open Source Strategy Manager Simon Phipps. “The directive on computer-implemented inventions does not cover open source software”. He added that “an article on interoperability” was needed. “This is a problem of open competition and the creation of markets”. Jiri Gaisler, the head of a Swedish SME producing software under GNU/GPL licence for European satellite programmes, said “the current patent system discriminates hugely against SMEs” and that it acted as a brake against market penetration. He criticised the pressure exerted by clients who required businesses to sign a declaration undertaking to pay any legal fees incurred in patent-related lawsuits. MySQL head David Axmark said “commercial brands compensate for the effort of innovating” and that there was “a boomerang effect” to holding patents that were expensive and could slow innovation. Sam Hocevar, speaking on behalf of the VideoLAN Project, which produces the most widely used multimedia reader for the Macintosh, explained that a patent could sometimes protect “file formats” and warned against businesses marketing DVDs who forced the consumer to use specific software to use them. Alan Cox, one of the fathers of the open source operating system Linux, said “a piece of software is a work of literature” and that the effect of making computer programmes patentable would be to “crush SMEs and make them flee the EU”.