Local view for "http://purl.org/linkedpolitics/eu/plenary/2005-07-05-Speech-2-011"
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"en.20050705.6.2-011"2
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"Mr President, ladies and gentlemen, we are in the final stages of a long and fine parliamentary battle. I have to remind you what is at stake, although five minutes is an absurdly short time for such a complex problem.
Ladies and gentlemen, you are being invited here to reconcile principles, the law, consistency and clarity and merely to ask our major industrialists to make an effort to adapt – an adaptation which everything suggests will be much less painful than they believe.
There are three issues. The principle of the free movement of ideas, respect for competition and the rejection of the monopoly effect of patents, and finally the protection of individual inventors and small and medium-sized companies against the overwhelming might of a few very large corporations.
Everyone here wishes to clarify the law and believes that a directive is needed. No one here wants all software to be patentable. So, there should be no problem, except for the fact that a recent development, scarcely more than 20 years old, has complicated matters.
In the earliest days of the IT industry and when the first computer software was developed, no one ever thought of patenting it. Silicon Valley, Mr President, operated on this basis and developed for 20 or 30 years without patents. Software was protected by copyright, which was quite sufficient. Then, from the US, where there is no law on these matters, the idea emerged of extending patentability into this area. The starting point is the idea that the immaterial is not technical and that everything that connects to the material world and that uses matter, energy or tools is patentable. To be patentable, something must be new, inventive and capable of industrial application and must make a technical contribution. Everything that is a carrier or handler or that presents information to a software program which then processes it or that extracts the results of the software program's calculations in order to transfer them to the real world via a moving component or a signal – all of this is patentable, while the software program itself is not.
Later on, software programs were embedded inseparably in an invention in which carriers, software and handlers were again linked and inseparable. Then, inventions appeared in which only the software was new, while the carriers and handlers were old. We have therefore seen a number of courts and certain national patent offices, as well as the European Patent Office, committing the error of considering everything as technical, with the result that there are now 200 000 patents of this type, or more, in the USA, and 30 000 granted by the European Patent Office, notwithstanding Article 52, paragraph 2 of its basic charter, which stipulates that software programs are not patentable.
The abuses are well known and must not be forgotten: patents have been issued for teaching methods, commercial methods and guides for surgeons. In all these cases, if the software programs had been free, the whole of Africa could immediately have benefited from them, for instance in the fields of teaching or medicine. However, they are patented in the US, with the result that they are extremely expensive and out of the reach of the modern world. We have all condemned these abuses, including those of the European Patent Office, but its error has meant that the dividing lines are not clear.
Mr President, ladies and gentlemen, you are being asked to go back to first principles and to the law. However, some of our most prestigious industrial companies have not understood what we are doing. They are afraid of losing their protection, which we can understand in the short term, because the removal of protection will disturb the equilibrium in some areas. What do the largest companies do today? They swap portfolios of patents among one another to avoid the drawbacks of patentability suffered by anyone unable to take part in this game – namely anyone not as large as they are. Legal costs in all these companies’ research and development budgets are increasing relentlessly, and now exceed 20% just about everywhere. Two thirds of patents in force in the European territories are American or Asian, not European. Finally, when Siemens, GEM PLUS or Alcatel sell their mobile telephony divisions, these divisions go off to Asia, taking their patents with them, thereby depriving Europe of any chance of developing in these areas.
We therefore feel, Mr President, that, in the long term, the defence of our European industry is better served by liberty and by freedom of access than by patents. Moreover, China is training 2.5 million IT professionals every year. How can we face up to this challenge? The best way is freedom. Our leading industrialists should have grasped this, instead of which they have tried to use ridicule. What is more, this debate has given rise to a number of insults. For instance, it is a ‘man of the Middle Ages’ addressing you now. This is an indication of just how weak their position is. Our industrialist friends should admit that, just because an error has occurred, there is no reason to adapt our principles and law to fit in with it.
Turning now to the final problem, the TRIPS Treaty, ADPIC in French, can be interpreted in two ways. Either all software programs are patentable, in which case there is no problem: they all fall within the TRIPS (ADPIC) Treaty and WTO panels, but that is not what we want. Or alternatively, no software program is patentable: they all fall under the international laws of copyright. They also depend on the WTO panels, but with other rules. In the second case, we are also complying with the TRIPS treaty, although we are aware that the only thing prohibited by that treaty is the grey area. If there is a difference of opinion as to why a particular piece of software is patentable, the dividing line has ceased to be effective and the situation where ‘everything is patentable’ is possible, or at least is permissible."@en1
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