Debate 26 June 2004 Commission of Economic Affairs of the Dutch Parliament: Summary
President Hofstra:
- The meeting of the permanent commission for Economic Affairs (EA) is hereby opened. I sincerely welcome the political top of the department, as well as their associates. Also the many interested people and of course my colleagues. Today, it will be about software patents and related affairs. A number of letters have been put on the agenda. We have time until maximally 20h45 and I propose my colleagues to use at most 5 minutes to present their case in first instance. I assume that you can speak the order in which you are seated. In that case, Mr Hessels from the CDA can start speaking.
(00:46) Hessels (CDA):
- Apologies accepted for misinformation and bad preparation of standpoint in Council
- The heart of the problem lies according to the CDA fraction in 3 points:
- How definitieve is the influence of the standpoint of the Competition Council for the final text of the new directive about software patents?
- To what extent should we meddle in the work of the EP?
- And what should be the commitment of the State Secretary and the Minister at a next Council meeting in which the decision of 18 May will be formalised?
- Technical details responsibility of EP
- First question answered by letter 16 June of State Secretary: must go back to EP at least once more and in the end Council and EP must agree on the text
- As such, present text is just first opinion of the Council, but is a signal of the Council which requires great diligence. Most countries with doubts abstained in Council. Given the commotion of the last few weeks in the Netherlands, a similar position of The Netherlands would be appropriate.
- As such, my fraction wonders wether abstention by NL during the second vote wouldn't be appropriate. This way, we don't mingle unnecessarily in the affairs of the EP, nor in the relation between Council and EP, and that seems to be best to me. It is our turn when the directive has to be implemented in national law.
Van Dam (PvdA):
- A short question. I will tell you later that I will present a motion on this subject asking the cabinet to review its position. Does this mean that the CDA will not support that anymore? And that the CDA takes distance from the quote of Mr Doorn stating that it is shameful that the amendments have been ignored? I think you are retreating your position a lot now.
Hessels:
- I said that I think NL should abstain during the next Council meeting and the previous time we were in favor, so that is still a change. I prefer abstention because that is similar to what other countries with similar internal discussions did.
(05:35) Gerkens (SP):
- To put it weakly: SP is not impressed very much by the letter of 16 June of the State Secretary. I still think that the case at hand has been handled very undemocraticly both at the national and at the European level, and that the parliament has been seriously misled.
- I also wonder about the statement of the State Secretary on page 15 where she says that the EP will still have a plenty of opportunity to intervene in this case. Is it true that in second reading in the EP an absolute majority is required to still be able to change anything? Can the State Secretary elaborate on that?
- Next, the proposal itself. I am not convinced software patents would be good for innovation nor that the text of the Council agrees with the one of the EP. On the contrary, and it seems this sentiment is supported by 340,000 people, among which more than 2000 CEO's, 25,000 developers and engineers, more than 2000 scientists and 180 attorneys, among 30 professors in computer sciences and a group of distinguised economists. President, that is quite something.
- This opposition means that something really shocking is going on and the State Secretary must agree with me on this. Even better, EA stated in a report published in 2001 itself that NL should be critical about the souple application of software patentability as it happens in the US. Can the State Secretary explain where the sudden turn-around comes from? Is this a consequence of new insights, or are there more likely other interests at stake?
- Very sad that this government has created a whole platform to strengthen the innovative potential of NL, and that we fight for Open Source and Open Standards, but that on the other hand the government gives all power to large companies such as IBM and Microsoft with this proposal, thus destroying the innovative potential of small companies.
- I can't stress enough that the most labour intensive part of software is the programming and writing of the code, and that this is already protected plentifully by copyright. That's also the reason why without patents one can make money with software and that inventions are protected adequately. No justification for software patents left and on top of that not one example of a good software patent. Maybe the State Secretary knows one.
Another embarrassing details is that US macro-economical research, by James Bessen and Robert Hunt, has shown that software patents cause shifts of money from R&D to patents and juridical budgets. So what we want, that companies invest more in R&D, goes to juridical costs, so I wonder how the State Secretary sees these contradictions.
- Finally, one of the priorities of the cabinet has been to reduce the administrative costs for companies by 25% during this term. How does the state Secretary want to prevent the juridical jungle for software businesses and internet shops and the consequential administrative costs?
(9:11) Örgü (VVD):
- Letter from Minister shows that nothing will be rendered patentable which isn't patentable now. On the contrary, the directive makes sure there is no extension of patentability and simply a clarification of existing rules and solving an inconsistency between national laws.
- VVD supports scrapping "forces of nature" wording because this is confusing, since all processes are based on natural forces.
- Without a clear directive, patent granting in Europe will slide towards the situation that opponents of this directive fear: a US situation where patents on trivial inventions are the norm. With all consequential negative influences for SME's.
- Obligation for Commission to report after 3 years on the consequences of the directive very important for the VVD. VVD supports State Secretary in that if the consequences would be larger and more negative than what is foreseen now, the Commission has to present amendments to alleviate these problems.
- (some comments on the community patent)
(11:51) Van Dam:
- Happy that the minister attends this time, surprised he wasn't there last time, since he was responsible for the standpoint taken in the Council and since he has the authority and the age to be able handle criticism from the Parliament.
- Last time, State Secretary already talked a bit about wrong information, an error in the word processor. That is very different from what Johanna Boogerd said, then still EP member for D66, who talked about pure deceit. She noted that the Council presented the proposal as a compromise. I am curious how the minister judges the statements of his part colleague and I still find it very unbelievable that wrong information, without the minister noting it, could be passed in a letter to the Parliament. The State Secretary has already apologised and the minister will undoubtedly do the same in a minute, since a "sorry" is certainly appropriate here.
- Regarding contents of the dossier: previous time, State Secretary could not explain why Council deviated from Parliament text. Now this has been extensively documented in writing, for which my gratitude to the State Secretary. Motives of the Council and those that support the Council text are more clearly now, but for the PvdA it's now even more clear why we hold a different opinion.
- Let me first say that the PvdA also supports a directive on the patentability of software, since this directive must harmonise the EU policy and must put an end to the practice run out-of-hand in some member states and in particular at the EPO.
- That's why we supported in the EP a number of amendments which limit patentability. As far as we are concerned, software can be patented as far as this software is part of a material invention, embedded software so to speak. Software which works on a regular computer, PC, laptop or palmtop consequently does not fall under this category and the EP amendments have led to a directive which takes care of exactly that.
- The Council proposal deviates from this, two examples: articles 2 and 5.
- Article 2 of the Council weakens the proposal compared to the EP, especially regarding the technical contribution. We have plenty of experience with the EPO that shows that with such a definition of technical contribution as in the Council text. An example of such a technical contribution is a reduction in the number of required mouse clicks. And the example of the State Secretary in her letter is also a good example: she notes that also in Europe she can imagine something when thinking about the double-click patent. I can't imagine anything when thinking of that.
- Article 5, paragraph two states that a patent is allowed on a computer program as such, if this program when running on a computer realises a process which is described in the patent application. As such, this applies to all computer programs and I will give you an example. The EPO has granted a patent on selling stuff using a network consisting of a client and a server and the programmed devices together form something inventive, something patentable. We are talking about webshops here, as there are possibly millions in the world by now. But at the moment of the patent application this was undoubtedly something novel. And this kind of patents get a legal basis thanks to this Council proposal.
- Scared by passage on page 10 of letter State Secretary where she says that you don't even have to have written a program, not even need a prototype, in order to be able to get patent on a software invention. This opens the door to exactly those defensive patents we are so afraid of.
- This leads to my intention to make a request to the government via a motion.
President
- You could first try without a motion
Van Dam
- Well no, since we talked about this last time and the State Secretary then clearly said she did not intend to reviews her standpoint if there is not first a decision of the parliament. If she keeps this standpoint, let me rephrase it like this, than I consider filing a motion. And I intended to ask the government to vote against in that motion, but given Mr Hessels' words, I will request the government to abstain.
President
Ok, but in this house it's common to only talk about motions during the second term. Mr Vendrik of GroenLinks
