Speech by Michel Rocard at the meeting of the JURI Committee with Commissioner McCreevy
My speech will only be concerned with the patentability of software. But I want to start by bidding you welcome in front of this Committee and by telling you that you have our sympathy, because you find yourself willy-nilly in charge of a rather unpleasant business.
I should start from the beginning.
Software patentability causes problems. Our friends the Americans have no corresponding legislation. Their responsible agencies seem to have granted between 100 and 200 000 such patents, upheld by lower courts in certain cases. A few complaints are currently awaiting consideration by the Supreme Court, alleging violation of the Constitution which can result in heavy penalties. This breach of the Constitution would arise from infringment of the freedom to disseminate ideas note: probably a reference to the first amendment, given that software is nothing but a formula or an collection of mathematical formulas, and also that a mathematical formula is an idea expressed in mathematical form; it does seem that the Supreme Court is waiting for some European law to be enacted before deciding. We are thus in a way burdened with making law for the world. Primarily at stake, as we should recall, is the liberty to create and use software by individual researchers and Small to Medium-sized enteprises.
The European Commission that preceded you had, with good intentions, already begun planning for a regulation. The explanatory memorandum was good: do not allow everything, do not legitimise certain American excesses. But the actual text nowhere contained that bright line which ought to separate that which is patentable from that which is not. In fact the Commission text was permissive without clear limit, just as national governments and countless experts consulted by your services have already written to you. Our Parliament became concerned about that. It read, worked and listened a great deal. It fixed on the proposition that such a bright line should lie where the production and detailed implementation of the software in question requires energy or material consumables, other than the intellectual effort of the creator, calling for monetary compensation. We amended the Commission's work in this sense, with the resulting collateral consequences, and in so doing put together the comfortable majority of 361 votes against 157, with 28 abstentions, on 24 September 2003. I speak on behalf of that majority.
Before producing its revised draft regulatory plan, with a view to a second reading which was to take into account Parliament's choices, the Commission delayed until Parliament was stood down for elections. That was the first irregularity. Thus on 18th. May 2004, neither having reopened consultation, nor taken expert advice on Parliament's position, nor proceeded to public hearings, the Commission submitted an improvised second version of its directive, completely ignoring Parliament's work, practically taking a diametrically opposed position and even hardening in some ways their position at first reading. Council adopted this in principle after very brief debate where Parliament's position was nowhere alluded to, a second irregularity.
This business had to run its course in legal terms, with a formal gathering of consensus. The Irish presidency, making its presence felt simply from the fact that its website is sponsored by Microsoft, applied itself to this task by classifying the proposal "A", ready for adoption without debate. This item was submitted to three councils, including two fishing councils, by the Irish and Dutch presidencies.
Despite silence from both the German and Dutch governments, which nonetheless had seen their national parliaments in open revolt against the position taken by their governments on these matters, the three attempts to have them rammed through as "A" items failed, thanks to the courage first of the Polish government, then the Danish as of the day before yesterday.
To try on such standover tactics three times in succession is a third irregularity. Confronted with this situation, for which you are in no wise culpable, do please understand Mr Commissioner that the European Parliament, including its delegate yours truly, think it stinks to high heaven.
I have specific questions flowing in quick succession from all this.
1 - Will the Commission now be able to see that its present text shall not pass, and suggest to the Council of Ministers the reworking of the second version's revisions?
2 - Can the Commission explain just how it sees Parliament's suggestions as irrelevant?
3 - Will the Commission continue to deny that the text submitted to the Council allows for patenting any software item? What then does it make of the results of the second hearing organised by the Polish Government in November 2004, where all the industrialists present came to the opposite conclusion?
4 - Just how does the Commission reconcile the position of the defenders of the second version of its text, saying it confines itself to codifying the existing practice of the European Patent Office, with that of those who affirm that it does not permit the patentability of software? note: M. Rocard seems to be saying that the EPO's current practice is to grant software patents.
5 - Does the Commission intend to validate the thousands of EPO patents granted concerning the organisation of computer-based data, or business methods patents, and potentially those which may be granted for pedagogical or surgical purposes?
6 - Can the Commission bring itself to admit that a definition of what is "technical" such as "using technical means" is quite tautological and cannot therefore suffice to distinguish that which is patentable from that which is not?
7 - If in the Commission's eyes reference to putting natural forces (material and energetic) to work is not relevant as a basis for distinguishing what is patentable from what is not, can the Commission propose another, since our principal objective as lawmakers is precisely to propose one?
8 - Finally, does not the Commission consider that it may be time to advise the Council of Ministers that it withdraws its scheme, and to ready itself to redo the whole thing from new?
Thank you kindly for listening with such attention,