American Bar Association
Robert W. Sacoff Section Chair, 2003-04
[..] Finally, we have circulated a third request for Blanket Author-ity to send comments to Mrs. Mary Harney, President of the Council of the European Union, on the proposed Software Patents Directive, which is inimical to IP rights and would adversely affect many U.S. IP owners. Based on the hard work of Erv Basinsky, who chairs the Committee #102 (International Patent Treaties and Laws) subcommittee on the European Software Patents Directive, Council has approved the following letter to the Council of the European Union and we will send it as soon as Blanket Authority is granted.
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Dear Madam President:
I am writing to you on behalf of the 20,000 plus members of the American Bar Association (ABA) Sec-tion of Intellectual Property Law (IPL) with respect to the Proposed Directive ("Directive") on the Patentability of Computer-Implemented Inventions. We understand that, in the near future, the European Commission and the Competitiveness Council will consider the Directive as currently amended by the EU Parliament. We respectfully request that you take the following comments into consideration as you complete the First Reading process.
The views expressed in this letter are those of the Section of Intellectual Property Law. They have neither been submitted to nor approved by the ABA House of Delegates or Board of Governors and should not, therefore, be construed as representing policy of the American Bar Association.
The European Union (EU) Commission has noted that the standards followed in the European Patent Office (EPO) and by national European judicial authorities show that attempts to draw distinctions between patentable and unpatentable Computer-Implemented Inventions leads to unpredictable and constantly changing judgments with respect to patent protection for Computer-Implemented Invention. Such uncertainty creates adverse consequences for the market and for innovators. As a result, the EU Commission's proposed Directive is an attempt to minimize, or remove altogether, these difficulties through a harmonization of these standards.
The original Directive (COM(2002)92 -2002/0047(COD)) embraced the principle of harmonization of legal rules among member states of the EU (Recital 5) and a commitment to the principles of TRIPS and their application to Computer-Related Inventions (Recital 6). We note that European interests also participate in other global forums, aimed at achieving international harmonization of patent laws, for example, through the successfully completed Patent Law Treaty and the Substantive Patent Law Treaty currently under negotiation. The ABA IPL Section supports the Commission's initial proposal as a valid attempt to harmonize the pat-ent laws concerning Computer-Implemented Inventions in the EU Member States. We are deeply concerned about the amendments adopted by the Parliament on September 23-24, 2003. The Rapporteur's Final Report was heavily amended, and the text finally adopted by the Parliament now includes, for example "technical" and "industrial", and provisions excluding data and information processing, handling and presentation from patentability, as well as exceptions from infringement for any act involving these procedures. The amendments to Articles 2, 3, 4 and 5 are believed to place in question most Computer-Implemented Invention patents in Europe. Article 6(a) appears to make unenforceable many existing European patents.
We believe that this amended directive not only violates the intent of the EU Commission's proposed directive to harmonize, and clarify, the existing laws of the EPO among the member states of the EU, but also violates existing world-wide treaty obligations regarding the patentability of inventions, and places in question the patenting of Computer-Implemented Inventions in Europe. We believe that the Directive, as amended by the EU Parliament, suffers from lack of clarity more than ever before.
We are aware that responses to the EU Council and Commission, which argue against these amendments adopted by the Parliament, have been submitted by many European businesses and concerned parties, such as the CEOs of Alcatel, Siemens, Nokia, Ericsson and Phillips, by the German Patent Attorneys Chamber, by the AIPLA, FICPI and by the International Chamber of Commerce. Nevertheless we believe that our voice must be added to these on behalf of our members.
As indicated by John Kay in the 21 January 2004 edition of the Financial Times:
"It is a truth almost universally acknowledged that we are living through a period of technological change whose speed and impact are without precedent. The effect is on our desks and in our pockets. We carry devices, whose processing capability would, a generation ago, have required a roomful of computers and, a generation earlier, would have demanded an army of clerks. Our personal lives are transformed by mobile phones and internet access, our business activities galvanized by instantaneous data transmission and computerized inventory management."
We sincerely believe that these innovations and their pace of development would not have been possi-ble without the related IP protection including patents, now existing in Europe and elsewhere.
We recognize that such patent systems have provided a basic incentive to progress that benefits mankind, and that patents provide an effective means for enabling inventors and small and medium sized enterprises (SMEs) to compete with larger companies in such times of phenomenal growth.
Without such protection, product diversity would wither, and the choices available to consumers would diminish, as free copying and imitation would dominate any incentive for risk and innovation.
We are equally convinced, that the elimination of Computer-Implemented Invention protection in Europe will lead to a corresponding decline in investment in Europe by both European and non-European companies together with a decline in product diversity offered by those companies in Europe due to the absence of protection for Computer-Implemented Inventions based product features.
With these far-reaching impacts in mind, the amendments adopted by the European Parliament in its first reading are so harmful that it is clearly preferable to have no directive on this subject rather than a directive as amended by the European Parliament.
Accordingly, we urge you to re-ject the restrictive September 2003 amendments adopted by the Parliament, especially those amendments in Articles 2 through 5 and 6(a) of the proposed Directive. We support the proposed compromise by the Presidency of the Council dated January 29, 2004, and urge the Council not to accept any deterioration with regard to that text.
Very truly yours, Robert Sacoff Chair American Bar Association Section of Intellectual Property Law