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Open Letter from FFII to MEPs on Pending Decisions Concerning the Software Patent Directive
(NOTE: Meanwhile JURI has voted as we had hoped.)

From: Foundation for a Free Information Infrastructure (FFII)
Brussels Office
Rue Michel-Ange 68
Phone: +32-273 962 60, +32-485 832 126, +32-486 233 396
E-Mail: info at ffii org
To: Members of the European Parliament
JURI members in particular
Date: January 31, 2005

Securing Options for the Parliament this Week

Dear Member of Parliament,

this week, the Legal Affairs Committee will discuss the proposed directive on the patentability of computer-implemented inventions (software patent directive) with Commissioner Charlie McCreevy? and Microsoft's Bill Gates, and it will also have to decide whether MEPs should have the opportunity to vote on a return to 1st reading when the Council's proposal arrives in the Parliament. 61 MEPs have demanded this right by a motion based on Rule 55(4) in late December, but until now it seems that so far the Tabling Office has denied this right without giving an explanation.

We are worried to see an erosion of MEP rights taking place while the Commission and Council are setting new sad precedents of disrespect for parliamentary democracy, both at the EU and national level. Under these circumstances, MEPs have very good reasons to insist on their right to file motions under rule 55(4) and their right to vote on a return to 1st reading. As we shall argue, the software patents directive is one of the cases where the exercise of this right makes sense.

Why the Patent Industry Opposes a Renewed Referral

These days you have been receiving letters from Nokia, Ericsson, Alcatel, UNICE and many other players who have built their business models around the patent system, demanding that you should take a strong stance against any motion based on rule 55.

The reason given for this demand is usually that you must quickly nod off the Council agreement, because “industry” can no longer wait. They also claim that this agreement forbids the patenting of software and business methods.

However, in internal memoranda of the same players, e.g. a memorandum sent out by a national member of UNICE to the patent lawyer committees of its member associations, the explanation is quite different:

"The Council has basically maintained its position of November 2002. It has taken on board only a few uncritical amendments from the Parliament. We must make sure that this position is adopted by the Council as soon as possible. Once it is handed to the Parliament for a second reading, the Parliament will most likely be unable to assert any of the amendments of September 2003 in view of the higher majority requirements."
The majority requirements are laid down in Rule 62:

Amendments to the Council's common position

4. An amendment shall be adopted only if it secures the votes of a majority of the component Members of Parliament.

In other words: any MEP who is absent or abstains on the day of the vote will be counted as pro-Council, and unless 60—70% of those present vote for each key amendment, the Parliament will not be able to go into Conciliation with a coherent counter-position.

Council: Unqualified Majority for an Outdated Package

The above analysis of the UNICE member organisation is correct. After the Parliament passed its amendments in September 2003, the Council's Intellectual Property (Patents) Working Party (i.e. the very people who sit on the administrative Council of the European Patent Office) ignored these amendments and merely reaffirmed their previous position, adorning it with some cosmetic amendments from the JURI reading of June 2003, which already had been derived from the same old Council position, while negating the Parliament's position on points that had previously been open, and adding further layers of deceptive packaging.

The result was the most uncompromisingly pro-software-patent proposal yet seen in the procedure. It basically consists in the Commission's approach of 1997, i.e. harmonisation with the US practise of patenting software and business methods, but guised in limiting rhetoric, with the term “technical” appearing more often and with less substance than ever before. Thanks to manipulative orchestration by Commissioner Bolkestein together with the German delegation and the Irish presidency, this proposal made it through a Competitiveness Council meeting on 18th of May 2004 without really enjoying the support of a qualified majority of member state governments.

The national parliaments woke up late, but did pass some resolutions and even binding decisions against the Council and in favor of the EP. The governments of the Netherlands, Germany and Denmark are under obligation to withdraw their support from the Council's agreement. Other governments have made unilateral statements to show their lack of support. It is unlikely that the Council will ever again pass a similar agreement on this directive. Therefore the patent industry wants the Council to quickly adopt this paper without a qualified majority, so that it can be pressed through an unwilling Parliament thanks to rule 62.

Overwhelming a New Parliament with a Propaganda Blitz

The patent industry is meanwhile staging a misinformation campaign of staggering proportions, paralleled only by the maneuvers of 1998, when one of the current campaign managers rolled handicapped people in wheelchairs into the Parliament to ask for the unfortunate gene patent directive to be passed. Similar emotional cues are being used now in large newspaper advertisements (e.g. European Voice). So-called SME representatives from non-software fields are being sent to the Parliament to tell you that their industry would be devastated by the limitations on patentability which the Parliament proposed in September 2003. Siemens representatives are telling you that this directive would undermine the R&D efforts for important medical inventions. But they probably are not showing you any of their patent claims. If you could take a look at the relevant patents from e.g. Siemens Medical Solutions, you would notice that Siemens has obtained monopolies on the data processing methods of medical doctors, i.e. on medical business methods dressed up as apparatuses, and is thereby threatening rather than saving lives. You would also notice that medical data processing achievements, like other software innovations, are sufficiently protected by copyright and business secret, and that the patents of Siemens and others in this field are without merit.

But will you have the time to really investigate the questions? Will you have time to force the patent industry into the form of communication which they dread most: a dialogue, where their wild claims about loss of investments and jobs can be subjected to scrutiny?

Unlike Siemens and the like would have you believe, the amendments of September 2003 represent a conservative minimum that is needed to stop the patent system's expansion into the realm of business methods and calculation rules. While the Parliament built 5 walls against patentability, the Council tore these down and built 5 opposite walls, i.e. walls designed to prevent any limitation of patentability. If you fail to secure 60—70% of the votes for again tearing down the five walls of the Council and rebuilding those of the Parliament, we will end up with a directive that pleases nobody, and there will be little hope of successful negotiations in Conciliation.

Even if you succeded in mustering 60—70% for all the crucial amendments, you will enter a Conciliation round with a Council that has not yet faced the problems. You will be negotiating confidentially with national patent officials who are more versed in patent sophistry than any MEP, and who are not even under effective supervision from their national governments, let alone parliaments.

MEPs can still force the Council to Face the Problems

Both the Council and the patent world are immobile and unresponsive to the interest of the public. The Council of Ministers in combination with the Patent World is a particularly toxic mixture, and it takes much more time than usually to build up a public discourse that can impress them.

The Council's patent legislators have not yet found it necessary to face the problems in open discussion. Should they really be allowed to get away without it? Shouldn't the Council's be obliged to address the Parliament's concerns? Shouldn t it also be obliged to secure support of national parliaments, if it wants to go against the European Parliament?

Parliamentary democracy is currently very weak in the EU, but it is up to us to make it happen. In this case it is enough if one country asks for a recount of the votes on the software patent agreement (B-item). Sufficient public attention has built up to force the Council into renegotiation, if only the question is asked. Council diplomats and government officials will tell you that Political Agreements can not be changed, but they are wrong. As MEPs you have the necessary influence to make the Council interpret its rules in a more democratic spirit.

Still, it is quite possible that all efforts fail and the Council will one day adopt the unsupported agreement of May 2004 as an A-item. In that case the Parliament needs to be prepared to vote for a return to 1st reading. To prepare for that, a favorable decision by JURI would be of great help. If it is not taken this week, it may be too late. Another option would be to insist on the rights of MEPs under rule 55(4). At a time where parliaments are disrespected and MEPs deprived of their rights, this case should perhaps be taken to the ECJ as a matter of principle.

FFII in Brussels

The FFII has an office in Brussels (Rue Michel-Ange 68) and is working as a member organisation of CEA-PME (Confederation of SME Associations in . CEA-PME represents associations with 800,000 SME members from all over Europe. FFII has 80,000 individual and 1,200 corporate supporters and has become a center of expertise on legislation in the fields of software and industrial property rights.

We are available to help you ask embarassing questions to the patent campaigners and to help strengthen informed lawmaking by elected representatives in the EU.

Please do not hesitate to contact us.

Yours Sincerely,

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