Addressing a London meeting of critics of the proposed directive, Lord Sainsbury admitted he was dismayed that the great majority of letters received from the UK public have raised fears and concerns on our continued course of action, and insisted that such fears are misplaced. The directive will ensure that Europe continues to strike the right balance and provides clarity as to what can and cannot be patented with regard to computer-implemented inventions, he said.
Critics of the directive, including some of the biggest names in the open source industry, have stated that the directive as it stands would enable patents to be granted on business software, contrary to the current patent regime across much of Europe.
The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability, wrote Linus Torvalds, creator of Linux, Monty Widenius, co-creator of the MySQL database, and Rasmus Lerdorf, creator of the PHP scripting language, in an open appeal to the European Council in November.
Let me state quite clearly here and now that this is not what the directive is about, Lord Sainsbury told the audience. It is about clarifying the current law and maintaining the status quo.
The proposed directive has been hotly debated since May when the European Council of Ministers removed European Parliament amendments that sought to clarify what constitutes a technical contribution that would make an invention patentable, on the way to negotiating a political agreement on the directive. According to critics, the removal of those amendments has left the directive open to potentially allowing the patenting of all software.
Lord Sainsbury maintained that the purpose of the directive was not to change the position on software patents. We’ve had patents for software for technical inventions for some time, he said. What we hope is that it will clarify the situation within British law as it stands. It is clarity not change that this directive will provide.
UK Patent Office deputy director, Steve Probert, added: This directive is not changing the law, it’s intended to clarify the law. The experts in the field were unanimous that those [European Parliament] amendments would have largely shifted the goal posts. The task is to maintain the status quo, not to change the legal position.
Clarity is one thing that critics argue the directive does not provide when it comes to defining a technical contribution, but Peter Lawrence, director of policy for the UK Patent Office, revealed that it is considering setting up workshops to deconstruct this use of ‘technical contribution’, and make the definition clearer.
Peter Hayward, UK Patent Office divisional director, said the software industry has to recognize that patent law must cover more than just the requirements of the software industry. Many of the people in the software industry have slightly got their blinkers on, and don’t realize they’re part of the larger industry that the patent system has to protect, he said.
UK Patent Office deputy director, Tony Howard, said that assuming the directive becomes law, the wheels of European government would then bring about a definition of technical contribution. We’ll have for the first time the possibility that the European Court of Justice can rule on this, he said. That is where the clarity will come from on this.
Howard also revealed that the directive is likely to be converted into a common position of the European Council before the end of the year before being returned to the European Parliament for second reading in early 2005.
The proposed directive has been added to the Council agenda for items to be dealt with before the end of the year, and could now be formally approved by either the Environment Council on December 20 or the Agriculture and Fisheries Council on December 21-22, the only two Council meetings left before the end of the year.
The European Parliament could then accept, reject, or amend the directive as it stands, and Howard also revealed that the Parliament is likely to alter its rules of procedure to allow for new amendments to be entered on this second reading, rather than the usual situation that only allows for previous amendments to be reintroduced.
We have a special situation here as the first reading was in the last Parliament, and as I understand it, that rule will be waived, he said. We have a new Parliament, and it’s not clear what the view of the new Parliament will be.
