Summary of urgent debate on software patents in the commission economical affairs of the Dutch Parliament (3 June 2004)
- President of the debate: Annie Schreijer (CDA)
- State Secretary Karien van Gennip (CDA)
- Martijn van Dam (!PvdA)
Arda Gerkens (SP, also represented GroenLinks)
- Jos Hessels (CDA)
- Francine Giskes (D66)
Johanna Boogerd (MEP of D66)
- Fadime Örgü (VVD)
2 civil servants of the ministry of economic affairs (MEA) who advised van Gennip (= real people in charge of this dossier). Their names have been removed at the explicit request of the MEA.
- About ten sympathisers of FFII
- A representative of Microsoft
- Joke van den Bandt-Stel, secretary of technology policy of VNO/NCW (tied to UNICE)
- A civil servant of the MEA
- Several journalists (Computable, Netkwesties, ANP)
Short summary of what the speakers said
The State Secretary was in a strange position: she had to justify Brinkhorst's actions which he took in her name while replacing her during maternity leave. The summary below is very superficial.
- What "compromise between the EP and the Council" is the minister talking about?
- The crucial amendments of the EP have been ignored by the Council.
- PvdA wants a "no"-vote of The Netherlands at the official confirmation of the political agreement.
Giskes & Boogerd:
- The thoughtful work and energy put by the EP into her text has been ignored.
- EP wants clarity, no patents on ideas.
- Brinkhorst said that Boogerd didn't understand the definitions, but doesn't provide univocal definitions himself.
- Contradiction in discourse of Brinkhorst: doesn't want software patents, but on the other hand the EP's amendments forbid software patents.
- EP wants to clarify the current situation.
- There is no compromise between the EP and the Council
Also speaks in the name of Kees Vendrik (GroenLinks)
- Microsoft has patented double clicking.
- Bewildered about the fact that the text of the EP has been completely disregarded.
- How does the legislative procedure continue?
- A change of the Dutch standpoint in the Council !IS possible.
- Cites Brinkhorst: "The skulls of the parliamentarians should be opened to pour in knowledge about the EU."
- If so, what about the supposed "compromise" Brinkhorst talks about in his letter?
- Has support of Bert Doorn (EP-member CDA) for text of the EP.
- No clarity in European Patent Office (EPO): juridical uncertainty, against the interests of the industry.
- VVD is against software patents, "but this directive is not directly about that." (standard story about computer-implemented invention not being the same as software patents)
- Why have the definitions of the EP been deleted?
- The EPO must be stopped.
- Importance SMEs
- Evaluation/reporting afterwards may not be used as justification for bad regulation.
- Importance of grace period.
- Wants community patent (which did not have anything to do with the debate)
Answers of van Gennip:
- A lot of commotion, both from society and the political world.
- Part of the commotion can be attributed to misunderstandings.
- Regarding the "compromise between the EP and the Council":
(the relevant text, from the letter of Brinkhorst to the parliament:
- The Council and the European Parliament have very recently come to an agreement regarding the text of the directive. As such, this issue will appear as formal point on the agenda of the Council. The Netherlands will support the directive proposal as prepared by the Presidency
- Apologises for giving wrong information, there was no compromise between the EP and the Council.
Error is possibly due to an error in the word processing (received by loud laughter from everyone).
- Reaction van Dam: "The word processor is an excuse that's too easy, the parliament has been misled on purpose. Additionally, there is also the use of the expression "formal point" which was not applicable"
van Gennip denies the "formal point"-paragraph, after which van Dam cites it and the State Secretary has to admit that she was wrong there as well.
- Regarding the procedure in Brussels:
- The EP has accepted 64 amendments, of which the Council integrated 26 and of which 10 amendments are "in a grey zone". As such, in total they accepted more than half of the EP amendments.
- The Council's opinion is allowed to differ from the EP's opinion.
- The second reading in the EP will probably only take place under the Luxembourgh Presidency.
The Commission would have retracted the proposal if the Council would have followed the amendments of the EP.
- France wanted a declaration in the Council notes.
- Regarding the Communication to the Parliament:
After the second reading in the EP (and before the 2nd reading in the Council): there will be a debate in the national Parliament.
- Regarding the subject matter:
- The directive is about computer-implemented inventions, a good example is voice recognition in mobile phones.
- Decompilation is still allowed.
- Explanation about what decompilation is, notes that she is aware about software development because of her studies in applied physics at the TU Delft.
- Computer programs require lots of investments: development can take years and sometimes requires large teams.
- Does not want US-style patents, no patents on business methods.
"We do not want a patent on the idea of a shopping cart, only on the underlying algorithms" (public can't believe its ears)
- A start up can be a copy-cat as well, patents cause innovation because there is a public discussion about an invention.
- The webshop IS already patented in the EU, the EPO simply continues with its malpractice. Following the EP is mandatory.
- Agrees with van Dam, asks what's wrong with the EP text according to the Council
- Does not want trivial patents
- There was discussion about the EP text (+ something with the European Commission)
- It is not acceptable that the Commission simply threatens to withdraw the directive.
- The Council is co-legislator in the co-decision procedure, the texts has been strengthened (refers to the German amendment)
- Legalisation of the EPO practice.
- Discussion in which requested and granted patents are confused and in which van Gennip states that "requested patents have already been granted" (statement is probably not intended to mislead, but illustrates the lack of knowledge of the Sectrary of State)
- In practice there are not software patents due to EPC article 52.
- Grace period is a good idea.
- Article 4 bis ("program as such not patentable") stops pure software patents.
- The definition of "technical contribution" of the Council is a good definition.
- We need more information regarding the difference of these definitions with the EP text.
- The Netherlands has a different opinion compared to the Council.
- The definitions of the Council are not strict. A reference to controllable forces of nature is missing. With the text of the Council it's as if a story is not patentable, but the printed book is.
van Gennip summarises why NL was in favour of the Council text:
- Much more restrictive than the US situation.
- Encourages innovation: patent on software with hardware.
- Prevent imitation.
- Clarification for the EPO.
- Everything will be followed by the European Commission, the Council and The Netherlands + evaluation in 3 years
- "This is only the 1st round, EP and Council still have another turn."
- The Council proposal is not a compromise, wants discussion with Brinkhorst himself
- The Parliament has been misled
- Explanations are not convincing
- Why did some member states vote no or abstained?
- When will the text be formally approved?
- We received no answer regarding what's wrong with the EP-text.
- Minister Brinkhorst must attend the debate.
- The Netherlands must vote against at the formal vote in the Council.
- It has been made clear that not only the Parliament must be criticised.
- What is the date of the next Competition Council meeting?
- Error in letter was unfortunate.
- VVD supports legal certainty.
- Time and dates of sending letters must be made public.
- Another long discourse on the community patent.
This is followed by a hectic discussion on what should be done. At first, there is unclarity when the text can be approved. Instructed by the present civil servants of the MEA, van Gennip states this can be done in any Council formation.
van Gennip is ordered to find out by Friday morning (= next day) when the text will be formally approved. If this would be next week Tuesday, the voting behaviour of The Netherlands will be treated on the preceding Monday in a parliamentary debate with vote.
If the formal approval is later, a date will be set for a next General Discussion (in Dutch: AO = Algemeen Overleg), in which the written answer of van Gennip will be discussed.
In the mean time, van Gennip has declared that the formal approval will probably only happen in September.