The 276 pages document comprises a wealth of contributions on a broad range of patent-related topics, including the patentability of computer-implemented inventions, a judicial system foreseen for the Community patent and the Draft Agreement on European Patent Litigation, and recent developments in European and national jurisprudence.
Starting on page 16, you can see a personal statement of Mr. Michel Rocard MEP on the EU Draft directive on the patentability of computer-implemented inventions:
Chairman, ladies and gentlemen,
I am particularly honoured to be your guest because the circumstances of my being here are rather strange. We politicians get to serve in many different areas, but never in all. I have worked in defence, agriculture, the economy – a job for which I had to brush up on my mathematics – and finance. But law has never been my thing; I find it intimidating. You are attending this symposium in your capacity as experts. I, on the other hand, ended up here by accident, having been parachuted into the patent world. Yet it is for this very reason that you – or at least the symposium organisers – invited me to speak to you today, an opportunity for which I am most grateful.
We first became involved in this business just under two years ago. At that time I had the privilege of being the Chairman of the Committee on Culture, Youth, Education, Media and Sport of the European Parliament. This had nothing to do with law, and I was confident of my ability to exercise this role. Then a draft directive on the patentability of software was put to the European Parliament. As you are all well aware, the older we get, the more difficult it becomes to assimilate new information. I do not belong to the computer generation, something my sons often give me a hard time about, and simply had no experience at all of computers and at that stage did not even know what software was. As for the notion that software could be patentable, this was, of course, completely foreign to me.
When this draft directive adopted by the Council on a proposal from the Commission came before the Parliament, the Bureau of the European Parliament, in its wisdom, decided to refer the matter to the Committee on Legal Affairs. Nothing strange in that, you might say. But don’t ask me what body – because the way these things work is a mystery – sought an opinion on the proposal from the Committee on Culture. We were simply at a loss to know what to do. No one on the committee was a legal expert although some members knew a lot more about law than I did. Nevertheless, the thought of having to get to grips with a highly specialised area of intellectual property law, not to mention the whole world of IT, struck fear into the heart of every member and led to me being told that when no suitable rapporteur is found, the task traditionally falls to the chairman.
So you see, ladies and gentlemen, I stand before you today to report on our findings as a complete layman and would not be here were it not for the way our political institutions function. This, needless to say, meant toiling away for six months. We may have been completely ignorant, but at least we were conscious of this fact. So we set about doing lots of reading, some of which was in foreign languages; it is much more difficult to get to grips with technical language when it is not in your mother tongue. When it comes to the language of business and industrial property, my English is not so good, even though people think I can get by at conversational level. We also held many hearings. Once we actually became aware of what the problem was, we became genuinely concerned.
The European Patent Convention, which dates back to 1972 and to which we keep referring, contains – as our previous speaker, Mr Messerli, has just confirmed – an Article 52 stating that software is not patentable. It’s as simple as that. The problem stems from the fact that although software is essentially unpatentable, the European Patent Office has already granted and recognised nearly thirty thousand patents relating to software. How had this strange situation come about? To get a broader picture, we, of course, had to see what our neighbours were up to, our main neighbour in these matters being the United States; we did not devote too much time to looking at the Japanese system. The debate in the US is less complex because they have no legal basis comparable to our European Patent Convention to supplement and complement national law systems that are already well established. There is no equivalent US law, and thousands of software patents have been recognised and accepted. These have been processed and recognised by courts of first instance, but we also discovered that there are five or six cases pending before the Supreme Court for violation of the US Constitution in connection with the free dissemination of ideas and on which – it is rumoured, although we have no written proof – the US Supreme Court has not yet taken a decision. Word has it that it is waiting first to see what approach the EU or Europe adopts.
As you are well aware, there are more contracting states to the European Patent Convention than there are Union members. This in itself presents us with an utterly perplexing situation. The European Commission put a draft directive to the Council of Ministers, which had difficulty in reaching agreement, with the primary aim of creating a stable, coherent and enduring legal framework in this field with a view to limiting the number of appeals. The second objective was not to extend the scope of patentability currently recognised by the European Patent Office. This gave rise to a whole collection of provisions, which you as specialists in the field have had to consider. Of course, these provisions were just proposals.
We then came to the worrying realisation that in our view as generalists and as laymen, and yet as people who were taking a close look at this area, the legal boundary between is and is not patentable in terms of software is very vague, and that this uncertainty also applies to the case law of the European Patent Office and of its courts. This at least was our impression, having had to familiarise ourselves with some of this case law. We are all aware that software is only patentable if it has new technical features. But how do you define "technical"? So we started reading around the subject, commentaries and key documents such as decisions, and gradually realised that they are largely tautological, and that technology is defined in and of itself, and – this being the harsh assessment of a parliamentarian – that the definition of technical is simply anything that is complicated. This did not seem adequate, or conducive to future legal harmony, or likely to provide a stable and established context within which the European Patent Office could operate. In the course of our investigations, we interviewed many people and discovered that there are conflicts, major conflicts indeed.
Ladies and gentlemen, the masses have taken to the Internet. Many MEPs will tell you that never since the inception of the Parliament have we come under such heavy and aggressive e-mail fire. I must also confess that once it became known in these circles that we were looking for a restrictive definition of what was patentable as opposed to what was not patentable, we were bombarded with rather disturbing e-mails that went something like: "if you do this, the future of the global economy is doomed because you will halt scientific development". This form of rhetoric is one that we know well because throughout history the second half of the sentence has been the same. Just think back to the nineteenth century when people began sentences with: "if you want to put an end to children under ten working in the mines, ...; if you want to shorten the working day to ten hours, ...". This reaction we initially regarded as colourful and surprising, but by the time we concluded our work we came to think of it as rather disturbing.
So what is at stake here? I will try to give you our analysis, and start by telling you that most of the experts from industry, representatives from the legal divisions of big companies, whom we tried to convince with some of the arguments I will present in the following, were adamant in their refusal to recognise that there was an aspect to this controversy other than a technical one, and that this bordered on the philosophical. And yet, this is what parliaments are for. It is not the job of the parliamentarian to replace you as experts in a legal field. Our role is to increase the breadth of analysis, and to put legal decisions into the context of how concepts and ideas have evolved in our society. Over a 6 000-year period, humanity has not advanced much at a moral level. The means we have of killing people have become much more sophisticated but the underlying instinct that drives this action is the same. So not much progress on that front. I, as a great fan of the caves at Lascaux, have to say that looking at the beauty of the royal tombs of Ancient Egypt, it is clear that humanity has not made all that much headway in 6 000 years when it comes to creating beauty or art. However, humanity has made fabulous strides forward in the technical fields, thanks in part to knowledge disseminated by means of copying. From the dawn of time until the present day, the sharing of knowledge has functioned first and foremost on the basis of copying permitted by free access to knowledge.
As the structures of our countries became more complex, a new need – the need to pay creators and writers – emerged. As you know, the great French dramatist de Beaumarchais is the father of the copyright collecting society and the very notion of copyright, which is a legal arrangement to remunerate writers and other creators without restricting access to their work. It is simply authors’ moral right not to have their work misrepresented over their lifetime and for a limited period after that. And that is as far as its protection extends. However, humanity has done more than come up with works of art, plays and music. It has also invented countless objects, for which it has had to use material, energy, or harness natural forces at great cost, making it necessary to provide compensation to a level many times higher than simply paying a creator who needs software, a music stave, a novel, or a pen and paper and a well-developed intellect. The patent was invented to enable this reimbursement, and you as patent judges are more familiar than any with this tradition and legal construct. I am running a certain risk in telling you all this because I know that I am greatly oversimplifying the situation. But these are the simplifications not just of the man in the street at pains to understand your discipline but also those of a parliamentarian whose job it is to create the legal framework in which all this is supposed to happen. Unlike copyright, patents prevent use except where a licence fee is paid to compensate for the energy or tools used to arrive at the invention in question. This much is more or less clear, and I think that the bigger problems with which you are now confronted are relatively recent.
This distinction presented no difficulties before the computer age, which in turn ushered in the software era. Incidentally, I would like to congratulate the Academie francaise for once for coming up with the French term 'logiciel' as part of the bid to fend off the linguistic attack which could give us no alternative but to talk about these matters in English. I find the French 'logiciel' is better defined than the term 'software', a fact that has given rise to translation errors because the English term describes a broader concept than the French one. But let me stick to my subject and my own language. Once the new forms of knowledge, this new knowledge, became bound up with reason, logic or scientific expression – I hope there is some overlap here – its new expression took the form of software. So what exactly is software? It can be a mathematical formula but is more usually a set of mathematical formulae, and they are not patentable because the people who come up with these formulae only need a pen and paper to do so. According to the European Patent Convention and the great Einstein himself, a mathematical formula is not patentable, a point that was also made during the debate. Ergo software should not be patentable.
On the other hand, some forms of software cannot be fully developed or tested without using energy and/or tools. Typical examples would be the ABS braking system and the means of compressing eight hours of music on to a disk that could formerly accommodate three-quarters of an hour’s worth. In these cases, the software would not exist without the use of materials, heavy equipment and more energy than the negligible amount needed to run the computer itself. This could be the dividing line. Problems arise because the US has agreed to grant patents in respect of educational software. Let’s say a teacher uses software as a presentation aid. No energy, natural forces, or materials are expended on the development of this software, and one could argue that it should not be patentable because, being a teaching aid, the under-education of entire continents – beginning with Africa – would demand that it be made available and distributed immediately free of charge like any product of the human mind. Software to assist the surgeon during operations especially for vascular and cardiac surgery has also been patented. The analysis here is the same, ie it is merely a more sophisticated expression of intellectual endeavour. And we told ourselves that this could be the defining criterion. As it turned out, the debate with the Commission regarding the first reading in the European Parliament was rather strange because it revolved around this question. Commissioner Bolkestein, under whose authority the draft directive was drawn up and who was speaking on behalf of the college of Commissioners, kept insisting and even wrote that 'this is not about extending the scope; it is about providing clarification and stability, but it is also about reaffirming the existing bodies of case law'. On hearing this, we were all very impressed by him and the work done, and we applauded the recitals. However, on reading the body of the document, it seemed to us – our opinion clearly being partial and open to question, but nonetheless being our view with its own merits – that the provisions of this draft directive did not actually include the restrictive definition that the commissioner claimed to be providing. Through our work in this area, we had become aware of this tautology and ultimately the fact that it is impossible to find a hard and fast definition for the term "technology". Identifying such nuances of meaning is extremely complex but what it all boils down to is that "technical" just means "complicated", which is inadequate and unacceptable in our view. It was in this context that the reference to software requiring the use of energy or material for implementation and development was reintroduced into the text during a European Parliament debate. Making only this form of software patentable is clearly problematic for companies that file a lot of patents.
There are huge financial interests at stake in this business. One estimate puts the annual value of patent-related fees at between 35 and 40 thousand million dollars. We are talking about vast sums here, and I must also confess that I do not think that the European Parliament has ever in its history had to consider a single document with such vast implications. It therefore comes as no surprise that people are at loggerheads with one another. However, it is a mystery not to be able to find engineers, specialists from the big companies who are prepared to think seriously about what they are proposing, ie changing the status of knowledge in our world. Basically, our big concern, our main argument, is that of the new software developed – the millions, or tens of millions of pieces each year it would seem – just two or three per cent is produced by the economic giants Microsoft, Nokia, Apple and a handful of others. Most software, 96-97%, is the work of young researchers, students about to finish their degrees, who get together, say in a group of three, have a good idea and want to exploit it commercially. It is taken for granted that new software is developed using existing software. This means that the present legal uncertainty – which would be exacerbated if one claimed to be removing the economic uncertainty by extending the scope – allows these big companies (the rare few – ten or so – able to pay very powerful law firms to track down users of their patents) to identify, for example, a fledgling company set up by four students with EUR 50 000 to launch a good piece of software they had developed using a version that pre-dated the previous version of some Microsoft software and say "that will be 10 000 dollars, thank you very much". This could hold back the inventive tide in this area. And it is for this very reason that users of free software put up a strong fight, form groups and the surprising thing is that in some of our countries – I am not familiar with the situation in Belgium, but know with regard to France and Germany – that certain administrations such as the French Ministry of the Interior are changing their IT setups and replacing Microsoft with Linux, which is the main open-source software, ie software developed with the source code accessible to all. For reasons of transparency and so as not to leave themselves open to bullying and piracy while at the same time stifling innovation, they thought it better – the analogy being the US Prohibition in inter-War years – to uphold the principles of free use and copying in this domain.
The European Parliament spent a long time discussing this matter, and it became a cause of dissent among its large political groups. Over the course of an intense debate within the socialist group, we voted three times to keep open-source software, ie for the most technically restrictive definition in relation to software patents, ie the one I have just outlined which applies the use of energy or material criterion. Our rapporteur, Ms MacCarthy, who initially approved the Commission’s draft directive, at the second reading and under pressure from her group came round to the way of thinking I am describing to you. I tell you that after the six dark months of taking in this information, technology and vocabulary on the Committee on Culture, I was ready to step into action, being the rapporteur and having a definite role to play in this business. Our argument, presented in the plenary session was to tell the Commissioner: "we listened and agreed with all of your arguments – both written and oral – but think that you have failed to implement them in a sufficiently precise and coherent legal system, so we have made some improvements that reflect your intentions". He was furious and rejected it out of hand, but as it happened the outcome was amazing: 361 or 362 – I do not recall the exact figure – just over 360 votes to 150. It was an extraordinary majority given that among the 150 were the Greens who did not want any restrictive directives at all – an analysis I believe is wrong – but they did not even want to risk imposing any restraints. Their stance was an absolutist one – much more so than ours – in favour of totally free software. I think it was the wrong position to adopt and that we could not afford not to clarify the legal position. But the fact remains that the 150 votes against the draft accepted by a European Parliament majority cannot all be said to be at the service of the patenting community at large, if I may say so.
This is why agreement was not reached on the draft directive, and why it had to be sent back to the Commission and the Council of Ministers. We rather felt that the Council of Ministers took advantage of the European Parliament’s election recess of two-and-a-half months to get agreement on the main points of the second draft directive, although this is something we do not know for sure and is not public knowledge. Rumour has it that, under its presidency, Ireland, which has a relatively anti-competitive tax regime to promote development, has attracted many powerful IT companies and consequently has a considerable interest in the matter, pushed through a draft directive that antagonised the various factions in the European Parliament even more than at the first reading. I realise how lame it is to make a case based on rumour and not fact, a practice which goes against all legal principles and you should pretend never happened. The only thing is that when the time comes, there will probably be "bad vibes" generated by the feeling that "you could have waited until the new Parliament had convened to work on the new draft directives when there was enough publicity for us to have some say in the matter".
This is the background to the situation. We are waiting now for the second reading, which I know will be a battle. Both camps are preparing for combat, entering into uneasy alliances and making a lot of e-mail noise. I have attempted to present our arguments here today. If we are to disallow patents on all forms of software, which would be complicated, and ultimately prevent Microsoft from controlling all dissemination of new knowledge, we see a need for some criteria. We freely admit that the criterion rejected by Mr Bolkestein regarding the use of energy or material may be flawed and difficult to ascertain but it is our only option so far. We will pursue our efforts and try to be ever more precise, and provide sound reasoning with a legal and scientific basis. This will keep us busy in the coming year and I am looking forward to seeing the outcome of the battles that lie ahead. Incidentally, you may be interested to learn that in the new Parliament I have switched committee and am now a member of the Committee on Legal Affairs, and, ladies and gentlemen, would you believe it, I was appointed rapporteur for the second reading on this subject!
Now, Mr. Rocard acts as Rapporteur General for the JURI Committee of the European Parliament regarding the Directive on the patentability of computer-implemented inventions, thereby advocating amendments which effectively would destruct the patent system in a broad circle around every invention somehow related to software.
Special Edition of the Official Journal 2005 covering the 12th European Patent Judges’ Symposium Brussels 22 to 24 September 2004. There is also 
amendments which effectively would destruct the patent system in a broad circle around every invention somehow related to software.