EP takes position on softpats for second reading

By EDRi · May 4, 2005

Rapporteur Michel Rocard (French socialist, PSE) is preparing the European Parliament for the second reading of the controversial directive on software patents. On 21 April his working document was discussed in the EuroParl Committee on Legal Affairs (JURI) and on 29 April he filed a long list of amendments on the document produced by the Council of Ministers of Competitiveness. Rocard clearly wants to exclude any patents on pure software and business methods and is reinstating almost all of the amendments adopted by the European Parliament in the first reading. In spite of the massive majority in the EP during the first reading against software patents and ignoring the protest from 5 member states, the European Commission and the Council of Ministers produced a hotly contested ‘common position’ in March 2005 that didn’t specifically exclude software from patentability.

In his amendments Rocard proposes a sharp definition of a technical invention. He clearly states (both in the considerations and in the actual text of the directive) that software or other means of processing data can never be called technical and that an invention can only claim patentability if it is a really new invention, if it is susceptible of industrial application, if it relates to a technical activity and is using controllable forces of nature. An example of such a patentable technical invention Rocard mentions is an improved ABS breaking system, which is controlled by a computer, but has a real impact on forces of nature (breaking).

To prevent possible gaps in the legislation that would somehow still allow for a patent on software, Rocard is also guaranteeing the interoperability. If it is necessary to use a patented technique to insure the communication and exchange of data between two different systems or networks, such usage can never infringe on a patent, he proposes to add to consideration 22 and in article 6.2.

In his working document Rocard provides a noteworthy defence of the importance of free access to ideas and knowledge. “For thousands of years knowledge has been established and disseminated by copying and improvement, that is by free access to ideas. The fact that modern branches of knowledge, at least those that have some relation to logic or quantification, can be more easily expressed in the form of software must in no case lead to our relinquishing the principle of free access, which is the only way of safeguarding humanity‚Äôs luxuriant ability to constantly create new areas of knowledge.”

The Europarl JURI committee will vote on the amendments on 20 June 2005. The parliament is scheduled to vote in plenary on 6 July 2005. Meanwhile, the European Commission has issued an explanatory statement about the scope of the directive on Intellectual Property Enforcement (IPRE). It also includes any kinds of patents. The directive provides strong new enforcement powers to right holders and thus gives an extra incentive to MEPs to very carefully avoid patentability of software and business methods, to avoid competitors spitefully raiding each others offices.

Michel Rocard working document on the patentability of computer-generated inventions (13.04.2005)
http://www.europarl.eu.int/meetdocs/2004_2009/documents/DT/563/563744/563744en.pdf

FFII comments on rapporteur Rocard’s software patents report (28.04.2005)
http://wiki.ffii.org/RocardPr050428En

FFII report about the JURI debate (21.04.2005)
http://wiki.ffii.org/Juri050421En

Statement European Commission concerning Article 2 of Directive 2004/48/EC (13.04.2005)
http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/l_094/l_09420050413en00370037.pdf

Overview earlier articles in EDRI-gram about software patents
http://www.edri.org/issues/copyright/software