[ILUG] ILUG sends s/w patents briefing document to Irish MEPs

[Paul Jakma]

On Tue, 15 Mar 2005, Barry O'Donovan wrote:

> It was printed, binded and posted in this morning's post (Tuesday). Full
> details and copies can be found at:
>
> http://www.kde.ie/patents/

Nice, note that Kathy Sinnot should be listed under "Considering 
their position", at least according to her reply to me.

FWIW, I believe the letter is factually incorrect in its introductory 
point where it seems to claim that existing EPO granted patents on 
software methods are awaiting this directive to "come into legal 
effect". It is my understanding that both the EPO and several member 
states have already interpretated both member state law and the EU 
Convention on Patents in such a way as to allow certain kinds of 
software patents[1]. This directive is to ensure all member states 
will take the same view and avoid inconsistencies. So, within context 
of whatever standing EPO grants have in general, software patents 
granted by them *already* have legal standing in several member 
states, if not *all* (by virtue of common patent recognition - unless 
an individual member state were to specifically rule against current 
EPO practice).

There's also the question of software patents granted by the patent 
offices within the jurisdiction of each member state - the same 
convention which established the EPO also established obligations for 
each signatory to recognise grants by other signatories I think.

There's an important point to draw from this:

- We should *want* this directive to be passed, in its amended EP
   form.

because:

- If this directive is not passed, the status quo remains. We *still*
   will have software patents, still will have the ambiguity that
   currently allows the EPO and some member states to grant software
   method patents

I note the conclusion of the letter does seem aware of the above 
point. Though given the fallacy in the introduction, I have mild 
concerns about further representation on behalf of ILUG in this 
manner. ;)

To conclude: When making representation, please bear in mind that not 
passing this directive in amended form is nearly as bad as it 
passing[3].

1. See the commision proposal of the directive[2] itself, under "The 
current legal situation" and "The necessity of community .... 
harmonising" page 9.

2. http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Seek-Deliver&COLLECTION=com&SERVICE=eurlex&LANGUAGE=en&DOCID=502PC0092&FORMAT=pdf

3. McCreevy has stated to the EP that the commision won't be pursuing 
patent harmonisation anymore if this directive doesn't go through. So 
we'll be left with the status quo: software patents in EPO, several 
member states which already have explicitely acknowledged them, and 
an obligation to recognise those patents by the other states.

regards,
-- 
Paul Jakma	paul at clubi.ie	paul at jakma.org	Key ID: 64A2FF6A
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