MEP Ashworth forwards latest Harbour Apologetics
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UK Conservative MEP Ashworth and others are trying to soothe concerned citizens by telling them some standard untruths, such as that the Council's proposal doesn't legalise software patents, which it interprets to refer to (fictitious and pointless) patents on "computer code". Ashworth is probably forwarding a text from Malcolm Harbour.
Remarks
Below we cite the salient passages of the text while inserting a few short remarks, mostly refutations, here and there. It might be worthwhile to write an "Myths and Facts" style FAQ on pieces from this text.
Ashworth Response
[...]
- The Council Presidency has now formally adopted the Common position, which it was entitled to do under its rules of procedure. These rules are the responsibility of the Member States Governments, not the European Parliament.
The Council is not entitled to adopt a position when members demand renegotiations, as was the case at the session in question.
- The full co-decision process is being observed, in which Parliament has full rights to amend the proposal at both first and second reading. MEP's have been closely involved in the scrutiny of this proposal, and we can assure you that there has been no lack of public discussion, as you imply in your letter.
True, as far as the Parliament is concerned. Not true for the Council.
The UK Conservatives (Mr. Harbour) have been been helping the Council (i.e. ministerial patent officials) get away without serious discussion. The following text demonstrates this once more.
- In judging any future amendments, it is essential to have a full understanding of the objectives of this proposal. It is intended to clarify existing patent law so that software is specifically excluded, whereas genuine inventions which may include digital technology (estimated to be around 60 - 70% of all patent applications) are allowed. There is absolutely no intention to apply patent law to "computer code" - this would, in any case, be impossible to achieve since patents cover technical concepts, not specific coded solutions.
Indeed "patenting computer code" is a fictitious and pointless exercise, never asked for by anyone, just constructed in order to pretend that software patents are not being granted and Art 52 EPC is not being violated.
- We will now be evaluating the adopted text to see whether it achieves the desired objectives; to provide patent inspectors with a common framework within which to examine, and if appropriate, grant patents for innovations involving digital technology. We must ensure that computer software or business methods that do not involve new innovative concepts or make a technical contribution are excluded from patents. This will give the EU a distinctive and different position from the US and Japan.
There is no difference in the position of EU, US and Japan, as far as these points are concerned. See the Trilateral Standards for more on this subject.
- We need to consider the potential effect of the Directive on software development. You indicated in your letter that this would have a disastrous effect on innovation and even affect open source software. We would be glad to have your evidence of this.
Evidence has been collected at
- We have consulted open source experts and there appears to be nothing in this Directive that will affect the expansion of open source solutions.
We'd be interested to hear who these "open source experts" are.
- There is little evidence from the USA that software development has been slowed down by the US patent regime.
See above page. If that is not "evidence", what would be? What evidence is there for beneficiality of patents, for software and elsewhere? Economists usually answer that there is none, except perhaps in very few domains, such as chemistry and pharma.
- If the EU Directive is passed, it will be more restrictive than the current US patent environment. There is also little sign from the USA, of large companies pursuing small companies for patent enforcement -evidence suggests that the opposite is the case.
Active pursuing in court is not needed, showing the torture instruments is enough. And there is abundant evidence anyway (see above).
- Also, patent specialists consider that the passing of the EU Directive will exclude the attempted enforcement of existing US patents across the EU. We may need to tighten up the proposal to ensure that this happens.
Enforcement of US patents is not an issue.
What matters is whether European software patents which typically have exactly the same claims as their US cousins are enforcable.
- We are also especially concerned to protect innovative companies, especially small firms, using digital technology to produce genuinely original technical solutions. We have been contacted by many of them and they are very concerned that they may be excluded form the patent regime by inappropriate amendments to the EU proposal.
On who these "concerned SMEs" might be, see EICTA sends Microsoft to the EP as an SME.
- Patent royalty income is very important to these companies and is a major incentive to innovative research. If their needs are not taken into account, the impact on innovation could certainly be "disastrous".
Closer research shows that this is hardly the case. For a case study of an UK SME that has been touted as matching the above description, see Allvoice.
- In the end, the Parliament must balance all the arguments and reach a sensible solution that is right for everyone involved in the European economy. Conservative MEPs will be, as has been the case throughout, very much involved.
This is true for Malcolm Harbour. If other conservative !MEPs had also been involved, things might look a little better.
