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Droit de Propriété Intellectuelle dans une Économie Mondiale

L'Agende Cachée de la Commission Européenne

Jean-Paul Smets écrit en printemps 2000: L'Unité de Propriété Industrielle au sein de la Commission Européenne a construit un reseaux conséquent de pseudo-argument pour la brevetabilité du logiciel. En faisant cela elle se penche étroitement sur une nouvelle idéologie de la propriété intellecutelle, qui á été poussée déja quelques années comme politique d'intérêt national a Washington. Si l'Unité réussit a faire passer sa position, le prochain point sur son agende sera sans doute la légalisation de la brevetabilité des méthodes de gestion et méthodes intellectuelles.

Patent reform in Europe

On 7 October 1997, Mario Monti, Commissioner for Single Market and Taxation (DG XV), introduced the Green Paper on Patents. In this paper, the commission announced an ambitious program for a major overhaul of the European Union patent system. Major goals of this project include: reducing the cost of patents in Europe, establishing a community patent and... protect computer software by patents. 3 years later, a directive on patents is being prepared by the General Directorate of Internal Market, the new name for DG XV. According to the Commissioner for Internal Market, the European Commission if considering whether this directive "should go beyond the status quo (...) into the direction of the more liberal practice in the US".

The content of this directive may actually well look like the one on "utility models" which is already published as a revised proposition. Such directive includes a list of provisions which define which utility models may be granted and which rights are conferred to the holder. But it does not include indications of fees.

Of the three goals announced by M. Monti, two are likely to be reached: setting up a community legislation for inventions and extending patents to computer programmes. However patent cost reduction may well serve only as a decision-taking argument for the two other goals and be less significant than expected due to hidden oppositions from national patent offices and patent experts who are both worried to lose revenue. Still, the main goal of this directive will probably be reached: reform European Patent Law and put it in line with the US approach on patents in order to reach world wide "harmonisation" of intellectual property Law in a global economy.

This article provides the reader with an overview of the decision taking process which took place in the 5 last years at the European Commission. We shall first introduce the intellectual arguments publicised by the European Commission in favour of software patents. Then, we shall review the influence of reputable international organisations on the European Commission agenda as well as the involvement of the community of intellectual property experts in favour of software patents. Finally, we shall provide the reader with a independent analysis of the underlying ideology of the European Commission in the field of Intellectual Property Law.

We advise readers not knowledgeable of software patent issues to read first the "software patent overview" at the end of this paper. Readers should also take into consideration that this article does not intend to provide a scientific explanation to software patents nor does it provide solutions. Readers looking for economic or juridical solutions to software patents inconsistencies should read from the same author "Software Useright: Solving Inconsistencies of Software Patents".

A consistent network of fallacies

Besides stating that software patents "had a very positive impact on the development of the software industry" in the US and that "Microsoft now holds about 400 American patents for software programs", no study has ever been published by the European Commission to prove that patents on computer programmes do promote innovation and competition. Also, no study has ever been made by the European Commission on the numerous inconsistencies of software patents with the Rome Treaty. On the other hand, DG XV has been very active in setting up a consistent network of fallacies. All speeches from the DG XV, and especially those from its General Director, John Mogg, are based on the following arguments:

  1. The TRIPS agreements require software patents (and Europe must implement the TRIPS agreements)
  2. There is a consensus in favour of software patents in Europe
  3. Software patents are already legal in Europe according to the jurisprudence but the Law is not clear
  4. Europe should do like the US in order to benefit from the economic growth of electronic commerce

These arguments, although consistent with each other, can be considered as fallacies.

On the TRIPS argument, Paul Hartnack, Comptroller General of the UK Patent Office, explained at a conference organised by the British government and the European Commission, that

Some have argued that the TRIPS agreement requires us to grant patents for software because it says "patents shall be available for any inventions in all field of technology, provided they are capable of industrial application". However, it depends on how you interpret these words. Is a piece of pure software an invention? European law says it isn't. Is pure software technology? Many would say no. Is it capable of "industrial" application? Again, for much software many would say no. TRIPS is an argument for wider protection for software. But the decision to do so should be based on sound economic reasons. Would it be in the interests of European industry, and European consumers, to take this step?

On the existing consensus, a petition was organised by the Association pour une Infrastructure Informatique Libre in June 1999 which instantly received approximately 10.000 signatures of computer experts and citizens. Students of Louvain University in Belgium received more than 2.200 signatures, most of which from French Speaking European citizens. And 10 European Industry leaders, including inventors of the Web and "push technology", have raised their concerns on the European Commission initiative on software patents. In February 1999, Jean-François Abramatic, President of the World Wide Web Consortium, repeated such concerns at a public conference in Paris after experiencing the damage created by Internet Patents at the World Wide Web Consortium. Similar positions have been taken by German, Swede, French and Dutch companies.

On the legality of Software Patents, textbooks on intellectual property Law[1] clearly explain that "Software can not be patented", that "the game which is played nowadays consists in circumventing the rules", and that "the value of patents granted through this game is uncertain". Clearly, the EPO has abused the spirit of the Munich Convention on European patents.

On the requirement for Europe to follow the US, one may wonder if this is an argument in line with the European Construction effort and the Rome treaty. In particular, the Rome Treaty includes provisions for a high level of consumer protection, economic competition, security and cultural diversity which do no exist in the US. Certain aspects of software patents tend actually to be in contradiction with the Rome Treaty.

International organisations play the software patent game

Although most arguments of the European Commission are based on fallacies, although it is quite easy to show that software patents include numerous inconsistencies and tend to reduce competition or innovation, although software patents are likely to act against European economic interests, little opposition has been heard from European governments, apart from the French State Secretary of Industry who stressed the necessity to study the impact of software patents before any reforms to the Law, in a wording quite in line with Paul Hartnack's comments.

But decisionmaking in the case of Intellectual Property is a masterpiece of diplomatic strategy between the US, Japan and Europe, through international organisations such as the World Trade Organisation (OMC), the Organisation Mondiale de la Propriété Intellectuelle (OMPI) and the Commission Trilatérale, where the European Union seems to act as a follower rather than as an opinion leader.

In the role of leader and initiator, the US Patent Office has extended its patent policy to software, then business methods and applications of mathematical formulae.

The US supreme court confirmed this move in 1999, overruling a 1972 Supreme Court ruling that compared software's logical steps to "mental processes".

At the same time, the US Patent Office has deliberately chosen a "liberal" policy for examination which results in granting patents to inventions which are neither inventive nor new.

As a result of this policy, more and more concerns are raised in the US because "there's ample historical evidence that overly broad patents have stifled innovation in emerging industries".

But this policy remains the official policy of the US Government, the policy which has been promoted since 1996 when Al Gore introduced the Global Information Infrastructure (GII) and explained that

to create a reliable environment for electronic commerce, patent agreements should (...) require member countries to provide adequate and effective protection for patentable subject matter important to the development and success of the GII; and establish international standards for determining the validity of a patent claim. The United States will pursue these objectives internationally. Officials of the European, Japanese, and United States Patent Offices meet, for example, each year to foster cooperation on patent-related issues. (...) In a separate venue, one hundred countries and international intergovernmental organizations participate as members of WIPO's permanent committee on industrial property information (PCIPI). The United States will attempt to establish a working group of this organization to address GII-related patent issues.

The message has been well heard by at least one country: Japan.

In the role of "good pupil", Japan has closely followed all US moves on patents.

The MITI, which hosts the trilateral Web site of US, Japan and European Patent offices and is in charge of controlling the Japan Patent Office, has for example allowed the Japanese Patent Office to grant patents on business methods, without any consultation of the Japanese parliament or any democratic debate in Japan.

The MITI has also quickly implemented policies to develop electronic commerce in Japan, mainly concentrating on security of transactions.

But, in comparison with the 5th generation program, little investment has been concentrated in developing the Japanese electronic commerce software industry, leaving most of the japanese market to american companies.

Europe is now the "bad pupil" of this game.

At a recent meeting of the trilateral commission21 in Tokyo, representatives of European Commission were urged once more to implement the International Property Law and to reform their structures in order to develop electronic commerce at the same pace as the US.

Again, the notoriously fallacious "TRIPS" argument was mentioned.

Similar discussions have been held at the WTO and are being held these days at the WIPO.

In particular, the status quo where Europe would grant patents only for technical solutions of technical problems in software does not seem to satisfy US representatives who are calling for an extension of patents to business methods.

Locking the European Commission

The recent nomination of M. Monti, former Commissioner for Single Market and Taxation, to the position of Commissioner for Competition, and the nomination of M. Bolkestein, as Commissioner for Internal Market may lock the possibility for the European Commission to discuss the most embarrassing inconsistencies of software and business patents - namely their impact on competition, industrial secret and interoperability - and make sure that the US point of view gets into the European Law. M. Monti, a former member of the Trilateral Commission and former administrator of multinational companies, is one of the key personalities who pushed the community patent reform and the extension of patents to computer programmes, together with John Mogg, General Director for Internal Market.

One may then wonder whether Mario Monti, currently acting as Commissioner for Competition, will question the dangers for free competition of the initiatives he used to push when he was acting as Commissioner for Single Market and Taxation.

One may also wonder whether M. Bolkestein, now in charge of those initiatives at the General Directorate for Internal Market, will be informed by his administrative services of the economic impact, the political consequences and the juridical inconsistencies of those initiatives.

In particular, one may wonder whether John Mogg will let M. Bolkestein discover the total absence of balance in the positions taken in public by the General Directorate for Single Market and Taxation.

One may finally wonder whether John Mogg will let M. Bolkestein know that there is a third possible scenario consisting in stopping the abuses of the European Patent Office and putting it back in line with the spirit of the Munich convention.

Recent interviews of Bernhard Müller, who is in charge of software patents at the European Commission, confirm a clear predisposition towards adopting US approach without considering other approaches.

the basic question arises, whether the harmonisation shall be based on the basis of the status quo, as defined by jurisdiction in Europe, or whether it should go further, especially whether it should proceed further into the direction of US jurisdiction.
And the point of view of M. Nooteboom, manager of Industrial Property at the European Commission, who declared to representative of European SMEs and Open Source Software Associations that Europe always follows the US in the field of industrial property, may well be a sign of resignation in front a influent pressures rather than the sign of a personal belief.

Getting support from IP experts through a virtual debate

Still, even a masterpiece of international strategy may fail without visible local support. In a certain sense, this risk has been well considered by the European Commission.

First by getting support from the community of Intellectual Property experts working in National Patent Offices, working at the law department of multinational companies or in independent patent advising firms. For example, all but one of the speakers at the London conference were intellectual property experts, that is people who make their living from patents. All of them have agreed on the usefulness of software patents. Most of them probably hope that an extension of the reach of patentability will generate more business to their community. The same kind of ratio between intellectual property experts and computer experts was experienced at other consultations held by the European Commission. For example, the opinion polls on which Mr. Müller bases his conclusions in the above-cited articles, were directed exclusively to a selected group of IP law experts and consisted mainly of suggestive questions.

Third, a virtual debate will happen in order to let everyone believe that decisions are taken with a democratic in mind. The European Patent Office will suggest removing all exceptions to patentability from the Munich Convention (article 52), leaving exceptions to rulings from the President of the EPO. Opponents to this position, including the European Commission, will "only" ask for the elimination of the software exemption and the full implementation of the TRIPS agreements. Both positions sound different and, no doubt, there will be a passionate debate to decide who is going to take charge of Patent Law in Europe. But, whatever the outcome of this debate, the effect will be the same: most exceptions to patentability will be removed in Europe, and especially exceptions to patents on software. Regarding the situation for business methods, it is still unclear whether patents will be granted for business methods as such or "only" for software based on innovative business methods, which is actually the same in a society where most business practices and commerce are controlled through software.

When property matters more than competition

The current process of implementing software patents in Europe clearly shows the risk of having laws dictated to European citizens because of the ideology of a few civil servants and commissioners. In this case, the ideology which is promoted is a kind of conservative liberalism, based on the assumption that property is more important than competition[2]. To support this idea, the EC ordered a report to a german Law School in 1999 on the conflicts between property law and competition law. The report concluded that property was a higher value than competition.

Also, Dominique Van Der Gheynst, predecessor of M. Mueller at DG XV and main author of the much debated directive on life patents, rejected in 1999 to consider the potential contradiction of software patents with the interoperability principle of software copyright law, claiming such matter was irrelevant. This contradiction had been raised at an internal meeting by a representative of DG IV, the general directorate in charge of competition.

Finally, it is quite surprising for the European Commission to push software patents without publishing a report on their impact on innovation, competition, SMEs, etc. Or, if such report existed, it would be even more surprising if it was kept secret before a major decision has to be taken by national governments.

Ideology at the European Commission

The European Commission shows a strong ideology bias in the field of intellectual property. It considers property more important than competition, prosperity and cultural and social liberties. The European Commission also tends to act as a follower of point of views spread by a few individuals from international organisations known for their liberal-conservative ideology. This bias acts in favour of multinational companies, industrial concentrations and acts against the interests of consumers as well as innovative SMEs.

Much of this situation remains unknown to Europe's national governments and citiziens.

Further Reading



Annotations

[1] Lamy Informatique
[2] In contrast, progessive liberalism is based on the assumption that the State should always take regulations to protect competition from the potential abuses of property in order to reach a balance in the public interest.

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© 2003/09/21 (2000/05/24) Jean-Paul SMETS