The decision to adopt several amendments to the highly controversial directive, fundamentally altering its effects, is likely to lead to the directive's withdrawal by the European Commission, according to Alex Batteson, IT expert at British intellectual property law firm Bristows. He suggested that this might not be a bad thing, since patent reform could then be formulated by patent law specialists, without the need for democratic scrutiny.
"It may sound undemocratic, but the amended proposals arguably demonstrate that the issues being debated here are too complex to be left to the European Parliament, which can hardly be expected to have in-depth expertise in patent matters," Batteson said in a statement. "The amendments certainly appear to have irritated Frits Bolkestein at the Commission and he may decide to abandon the directive in favour of a renegotiation of the European Patent Convention. This would take the issue out of the hands of the Parliament and give it to national delegations of patent experts."
The directive was criticised by economists, small-business organisations, software developers and computer scientists for vague language that, critics argued, would have effectively allowed any software, algorithm or business process to be patented. This situation already exists in the US and benefits no one besides patent lawyers, critics said.
They successfully backed several amendments, including Article 6a, which is designed to prevent patents from interfering with interoperability. This amendment "arguably goes too far", Batteson said, because it could render many patents worthless. "The consequences for the IT sector could be very damaging. The European Parliament seems to have thrown the baby out with the bathwater here," Batteson stated.
The directive will next be debated by the legislatures of member states, which have the power to make changes, then returned to the European Parliament for a final reading.
Talkback
It was clear from the start that the patent lobby
was not interested in "harmonisation and clarification"
but only in having the judicial practise, which they
introduced illegally at the European Patent Office and some national courts,
rubberstamped by a legitimating authority.
Our PR of last wednesday already said it all,
see
http://swpat.ffii.org/news/03/plen0924/
and we are continuing to watch, as the "patent experts"
start waking up and finding with dismay that they
their prerogative of dominating patent legislation seems to have glided out of their hands.
You can bet there will be lots of irritated and funny
reactions during the coming days. As far as the alleged "expertise" of these patent experts is concerned,
I always like quoting their colleague PA Stephan Kinsella, who found golden words on this:
http://swpat.ffii.org/archive/quotes/#kinsella02
The patent lawyer lobby had only words of praise as long as Arlene McCarthy dominated the drafting.
They might be more credible now if they had pointed out that Arlene McCarthy's texts, as approved by JURI, were full of tautologies and contradictions and clarified nothing.
The same is true of the European Commission's original proposal, as was pointed out by the legal expertise which the EP itself ordered.
It was not easy for the Parliament to repair the shoddy legalistic rubbish which Batteson's friends hat submitted to it, but they did a remarkably good job at it.
Democracy may not be so bad after all
While I agree with Mr. Batteson that the issue of software patents is far too complex to be handed over to the European Parliament in the manner that it was, I still have to disagree with him when he suggests that the matter should be handled by the patent lawyers instead.
I have just spent an entire day going through the amendments that the European Parliament made to the resolution before adopting it, just to form my own opinion as to whether FFII, the Foundation for a Free Information Infrastructure, really has a leg to stand on when it describes the resolution as a victory for the opponents of software patents. As I am neither a lawyer nor a politician, but merely a programmer and citizen, I wouldn't really have gained much insight by just reading through the resolution as is. Instead, I went through the amendments one by one and checked what the FFII had said on each issue before the vote, and what they said afterwards.
After having gone through this process, I am now prepared to agree with the FFII that the adopted resolution is indeed a victory, and that it is a good thing that it passed, but like I said, it took me a day of reading just to reach this conclusion.
It is quite obvious that it was completely unreasonable to expect the parliament members, who would normally neither be programmers nor patent lawyers, to vote together a consistent legislative proposal in a plenary session lasting less than an hour, squeezed in between a resolution about the situation in Iraq, a proposal on European energy taxation, and a statement on the fisheries agreement with Mauritius. I think that the fact that they nevertheless managed to put together a good resolution does them great credit, and shows that many of them must have realised that this is an issue that deserves to be taken seriously.
But how did it come to this?
Well, this is where I have to disagree with Mr. Batteson's position, and state that I prefer the democratic road, despite all its shortcomings. While it is doubtlessly true that a group of patent lawyers working behind closed doors would have come up with a legislative resolution that was technically much more consistent, it would have been a resolution with radically different contents. Had it not been for the elected Members of the European Parliament, the software patent would have been a fact today --- carefully crafted and flawlessly phrased, no doubt, but with devastating effects for us in the computer industry.
On the issue of *what* should be patentable, the patent lawyers, and in particular the ones working for the European Patent Office EPO or within the EU bureaucracy, are most definitely parties to the case. Although there are many patent lawyers that are in fact opposed to software patents, as they have reached the conclusion that extending patentability into this domain is not in the public interest, it is unreasonable to demand that an entire profession should succeed in ignoring its own interests in an issue that so directly affects the future prospects of its members, career-wise and financially.
"[I]t would be particularly desirable to reconsider the practice whereby the [European Patent] Office sees fit to obtain payment for the patents it grants", as the parliament dryly remarks in Recital 7b of the adopted resolution.
The original proposal by UK MEP Arlene McCarthy, without the subsequent amendments, would have opened the floodgates for American style software patents, including the infamous Amazon 1-click-patent. What McCarthy tried to do, in conjunction and collusion with the patent lawyers at the EPO and within the Brussels bureaucracy, was quite simply to deceive her colleagues in the parliament. Whenever she has appeared in the media or elsewhere, she has either tried to present the proposal as a technical issue that merely harmonises existing practice, or as a means of *limiting* the scope of software patents, althoug
Democracy may not be so bad after all (cont.)
...although she must have been well aware that the real impact of her proposal was something completely different.
Instead of openly discussing the benefits or disadvantages of expanding the scope of patent legislation into new areas, and then leaving the technical design to a group of experts, she and the patent lobby chose to force the European Parliament to draft complex legislation more or less from the hip, in the turmoil of a plenary vote.
The fact that it managed to do so, and do it as well as it actually did, is something that leaves me rather impressed, and makes me quite prepared to give the renewed mandate to democracy.