[Fsfe-ie] Follow-up email for Mairead McGuinness MEP
jm at jmason.org
Fri Jun 10 19:17:37 CEST 2005
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great email -- it'd be nice to deal with the "as such" loophole, which
seems to be coming out in virtually every pro-swpat Irish politican's
speeches these days too.
Ian Clarke writes:
> When Aidan McGuire and I met Mairead McGuinness MEP on the 26th, she
> asked if we would send her a follow-up email outlining the
> situation. Here is the email we sent, in which we try to distil the
> issue down to its bare essentials. Feel free to use any part of this
> for any reason if you feel it might be useful.
> Begin forwarded message:
> > From: Ian Clarke <ian at locut.us>
> > Date: 5 June 2005 14:07:24 BDT
> > To: mmcguinness at europarl.eu.int
> > Cc: amcguire at bluefountain.com
> > Subject: Follow-up to meeting on 26th May about the software
> > patents directive
> > Dear Ms McGuinness,
> > Many thanks for meeting Aidan and I on the morning of Thursday 26th
> > May on the issue of the Software Patents Directive. As promised,
> > we will attempt to provide a brief summary of the issue and our
> > position.
> > In 1972 art. 52 of the European Patent Convention (EPC) stipulated
> > that programs for computers shall not be regarded as inventions and
> > shall therefore not be subject to patentability.
> > In recent years the European Patent Office (EPO), through a dubious
> > interpretation of the EPC, has granted over 30,000 patents on
> > software, over 70% of which are owned by non-European
> > companies. These patents remain largely "inert" as any attempt by
> > the patent holder to initiate litigation over these patents would
> > likely result in their invalidation.
> > For this reason Europe has been spared the negative impact of
> > patents on computer programs that is currently being experienced in
> > the United States, where the Federal Trade Commission has raised
> > concerns over the impact of software patents and where even
> > Microsoft, a strong advocate for software patents in the EU, has
> > called for patent reform.
> > According to a recent study by Maria Alessandra Rossi of the
> > Doctoral School of Law and Economics, University of Siena, the
> > current text of the Software Patents Directive as approved by the
> > Council of Ministers will result in "...a significant extension of
> > patentability, close to the situation corresponding to a deletion
> > of art.52(2) and (3)."
> > In this debate, the scope of patentability hinges on the definition
> > of the term "technical", as the current Directive text excludes
> > software from patentability unless it is of a "technical nature".
> > The problem is that the EPO considers virtually all software to be
> > of a technical nature, so this exclusion is next to meaningless.
> > In the first reading the European Parliament added a definition of
> > the term "technical" to the Directive text for the purpose of
> > clarification, but this was removed by the Council of Ministers.
> > It is therefore critical that the Directive be clarified to include
> > a definition for this term. This is achieved by the amendments we
> > cite below.
> > The effect of the directive being passed unamended will be to open
> > the floodgates to litigation of over 30,000 existing (but
> > questionable) European software patents. While large software
> > companies may have the resources to defend themselves against this
> > litigation, the vast majority of European SMEs will not. This is
> > why organisations such as UAEPME which represents over 11 million
> > European SMEs strongly oppose the current text of the Directive.
> > One point you mentioned specifically was that you had been
> > contacted by an employee of Ericsson who claimed that their job
> > would be jeopardised should this Directive not be passed. The
> > argument that companies will experience pressure to relocate
> > outside Europe should software patents not be permitted here is
> > entirely specious. The location of a company has no bearing on its
> > ability to acquire patents in other jurisdictions, and so no
> > advantage could be gained from moving to a jurisdiction where
> > software patents are permitted.
> > It may be the case that this employee was concerned about
> > Ericsson's ability to compete against smaller competitors if
> > Ericsson cannot use software patents against them. I would argue
> > that it is not the responsibility of any EU institution to protect
> > Ericsson against legitimate competition from other companies,
> > indeed competition must be encouraged. Software patents will have
> > a stifling effect on competition in Europe, and this is why some
> > large companies like Ericsson are strong advocates for this directive.
> > The Foundation for a Free Information Infrastructure, an
> > organisation whose line we endorse, has prepared an analysis of the
> > amendments, indicating which will help to ensure that software
> > patents do not become patentable, and which will not. This
> > document may be downloaded here:
> > http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/
> > amendment-analysis.pdf
> > In particular, we support the position and amendments of Piia Noora
> > Kauppi MEP, who has taken a strong position against the
> > introduction of software patents within the EPP group, and also the
> > position of Michel Rocard MEP who is the rapporteur for this
> > Directive.
> > We hope this brief summary of the issue and our position has proved
> > useful to you, if you have any further questions please feel free
> > to contact us.
> > Yours Sincerely,
> > Ian Clarke, Aidan McGuire.
> > References:
> >  http://www.european-patent-office.org/legal/epc/e/ar52.html#A52
> >  http://webshop.ffii.org/
> >  http://www.ffii.org.uk/swpat/ftc/ftc.html
> >  http://www.infoworld.com/article/05/03/10/HNmicrosoftpatent_1.html
> >  http://wiki.ffii.org/Rossi050310En
> >  http://wiki.ffii.org/Ueapme050427En
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