SOFTWARE PATENTS :

Position of the Jean Lambert MEP on the directive on the patentability of computer implemented inventions

The Greens support protection of software (be it free or proprietary) by means of the copyright - which is currently the case under a 1991 European directive. In the European legal tradition, expression of ideas, information, ... enjoy the protection of the copyright, while patents protect technical inventions. Copyright and patents are two different legal systems, for the sake of simplicity one can say that the first is for the world of ideas while the second system applies to the material world.

Software patents are much more than a technical issue : it is an issue of culture, of knowledge because software patents would open the door to patenting knowledge for the first time in the EU. This would create a dangerous precedent.

Software patents an economic issue : they harms SMEs and hinder innovation. They reinforce monopolies. Not only are patents very expensive to obtain and to maintain, but the patent system means that one has to pay expensive lawyers to claim and defend one's rights. Patent holders can legally attack other companies and software developers to claim ownership of algorithms. Those who can afford so build up patents portfolios, which they use to dictate law to others. To use patented algorithms, developers have to pay - the patent holder can legally refuse to sell. SMEs cannot afford such a lost in money and in time, let alone free software developers and scientific researchers.

Software patents are a European-wide political debate : across the EU, communities and individuals who oppose software patents share the same concerns and express these concerns publicly.

The Greens support the legal harmonisation in order to clarify the legal protection of software and to create a secure environment for software developers. Invention can of course be patented, meaning a teaching about a relation from cause to effect in the implementation of controllable forces of nature. In order to be patented, the invention must be new, non-obvious, and destined at an industrial application. Software are not inventions. This definition of invention is very similar to the position that EP adopted in September 2003 during the first reading of the directive - to the anger of the rapporteur Mrs. McCarthy, a social democrat MEP from the UK.

Pretending to protect inventors and their inventions, the Directive instead allows predominantly US corporations to lock up the market at the expense of the open-sourced software industry which, by more than a coincidence, is primarily a European sector.

Software patents favour huge companies that can afford a well resourced legal department, this inevitably harms small and medium-sized enterprises which create most of the innovation in the IT field. Patents are expensive, create much administrative work, and are granted slowly and for a long time period, while the life cycle of software is short. Moreover, patents kill free and open source software that is not only crucial for the EU's software production but also good for the consumer.

Patenting software is as absurd as patenting a novel or a recipe. The Directive goes against the expectation of the public and stakeholders including the Economic and Social Council, the Industry committee, the Culture committee, 140,000 people and 30 leading software scientists who signed two petitions to the Parliament, as well as the 91% of the European citizens who took part in a European Commission public consultation.

The Commission admits in the preamble that the public consultation of 19 October 2000 received 91% negative answers. However it considers the position of economic key players such as the UNICE as determining. The influence of the Business Software Alliance (whose main members are Microsoft and IBM) behind the project has been widely condemned. It is interesting to note that companies that have lobbied for patenting do not necessarily produce software themselves.

If this Directive were implemented, it would conclude the transfer of our data- processing control to the US.

In September 2003 the European Parliament voted on the first reading of the software patents proposal. It had been the intention of the European Commission and numerous European governments to adopt a system that is similar to the American one.

The Green Group was very active on this topic, leading resistance to the Directive (see our website http://www.greens-efa.org and search on "software patents"), organising conferences with leading patent experts, economists and computer programmers. We believe that copyright on software is a far more reasonable alternative, which protects a certain solution, while not preventing the development of alternative programs on a similar basis.

Ahead of the vote in Parliament we successfully managed to persuade enough MEPs to substantially modify the text, of the Commission proposal in the following ways:

· to exclude software from patentability (but only in one part of the proposal);

· to prohibit the patenting of intellectual methods (software, teaching methods, business methods etc); and

· to allow reverse engineering and interoperability.

Nevertheless, the draft Directive remained ambiguous and contradictory (articles 2 & 4 contradict each other, with the preamble contradicting the legal articles). Even with our amendments I believed it would open the gate for software patents in the European Union. It is for this reason that, after voting in favour of the amendments mentioned above, which helped to avoid the worst case scenario, I voted against the adoption of this Directive in the Parliament.

The Greens organised a day of action on the 15th of April to highlight the worries of the open source software community ahead of the decision by National Governments. This was a show of strength for the opposition from both the Greens, European GNU/Linux Users Groups and associations for the promotion of free software.

The Council of Ministers that met on 17/18 May (Council Competitiveness) did not take any meaningful amendment resulting from the vote in European parliament in account and decided to give the go-ahead to software patents.

At this stage the Green MEPs can only deplore the situation with the Council which is not taking the opinion of the Parliament into account, despite the fact that this is a codecision procedure.

The Greens count on the Parliament that will be formed after the elections on 13 June 2004 to restate its position during the second lecture, expected to take place next Autumn, and to say no to software patents.