Lehne "protecting innovation" In Parliamentary Magazine

4 July 2005 — In an article for Parliamentary Magazine published 2 days before the 2nd reading vote, Klaus Heiner Lehne MEP, JURI coordinator for EPP and lobbying consultant for a patent law firm, reiterates some well-known lies about the software patent directive, and adds new ones.

CII are not software

One more reiteration of the mother of lies:

We are dealing with a proposal to harmonise at EU evel the patentability of computer implemented inventions. We are not talking about "software patents", because this directive is not about how to patent software.

Compare this also to

  • Lehne lawfirm partner: Directive will give us US-style software patents

Misinformation about the legal situation and history

Lehne pretends that the software patenting rules proposed by the Council were established by the EPC in the 1970s:

Today, in all member states, computer implemented inventions are protected by patent law. This protection is based on the interpretation of the existing patent laws; the distinction between patentable computer implemented inventions and non-patentable software was elaborated by jurisprudence in the 1970. This took place because the protection of the software component by copyright prevented copying only.

Here Lehne compounds the "copyright is weak" lie by attributing it to imaginary lawcourt decisions of the 1970s. Compare this with the concluding remarks of the famous Dispositionsprogramm decision of 1976, which rejected software patents because the subject matter is more appropriate for copyright, and explicitely rejected claims of the appellant that copyright is too weak.

CII = innovation in information technology, small players need them most

For global players, this (copyright alone) might be sufficient. Butit does not help individuals, SMEs, universities or research institutions. Innovative products need to be protected by patent law, because only patents protect the functioning and the concept of an invention. A patent helps start-up enterprises to obtain necessary credits, to find investors or to get onto the stock market. Obtaining a patent is neither burdensome nor costly. Technical inventions in many fields of technology, such as information technoogy, telecommunications, the automotive industry, … and medicine, include software components.

Note: this reads very much like the standard discourse from the Siemens patent department.

New myth about 1st reading: confusing JURI with Plenary

In accordance with his new tactic of appearing conciliatory (see section below on "consensus of !MEPs"), Lehne no longer attacks the achievements of the Parliament's first reading but rather tries to attribute them to the Legal Affairs Committee, whose pro-patent stance had been undone by the 1st Reading. Lehne calls the cosmetic amendments of JURI a "complete rewrite" and claims that the JURI wordings eliminated trivial patents and business methods:

|We have added important safeguards with regard to the initial European Commission proposal: at first reading, the European Parliament's Legal Affairs Committee adopted a complete re-writing of the directive that became the basis for the common position. A clearer definition of the invention, modelled along the traditional definition was introduced. The exclusion of trivial patents, algorithms, business methods and software "as such" was clarified. Now, at second reading, we have introduced an interoperability clause. This clause shall ensure that, without prejudice to standardisation, programmes and operating systems must be able to interoperate. Free choice of products is guaranteed by this new provision.|

Note: at 2nd reading, JURI scrapped the interoperability clause which it had adopted in 1st reading in order to replace it by the Kauppi-Lehne clause which requires an SME to litigate for years before it can hope to receive a permission to interoperate. The other statements about the JURI achievements in 1st reading are also groundless. All JURI did in June 2003 was to introduce some wordings from the Council's position of November 2002, which left the Commission's approach of codifying the latest EPO doctrines mostly unchanged but newly introduced program claims. The Plenary then rejected this JURI approach in September 2003.

EPO practise is OK, no unjustified claims

There are about 30,000 patents on computer implemented inventions. To my knowledge there have not been any reports on unjustified claims over the last ten years.

On "unjustified claims" from EPO patents, see

  • EPO Patent Horror Gallery — contains examples of patents with claims that few would find justified, as well as examples of patents in action
  • Patents in Action (contains a more recent section about EPO-granted patents)

We need to strengthen the positions of software inventors

India and China envisage a major increase in their market share over the next five years. Both countries grant patent protection even for software inventions. We have to strengthen the position of our inventors. If we fail to do so, they will lose their international markets to others.

Here Lehne ignores the territorial nature of patents for the sake of protectionist fearmongering. The interesting point however is that once more he implies that the aim of the directive is to strengthen European "software inventors", i.e. owners of software patents.

Badmouthing the US for tactical purposes

After claiming that the principles of patentability of "CII" are clear and unified since the 1970s, Lehne now still needs a reason for a directive. Again the reason is to be sought in some unreasoned fear of what might happen without it:

The courts need political guidance. If we do not give this guidance, the development of this jurisdiction might lead to a situation similar to that in the US, where patents are granted to those who have better lawyers and more money for longer litigations.

In the US, patents are cheaper and more easily available to everybody, not just those with better lawyers.

Sudden "broad consensus among MEPs" on aims of the directive

In my opinion, there is a broad consensus among MEPs about the aims of the directive. Unfortunately there is no consensus about how to formulate this directive in a legally viable way.

Note: until recently Lehne claimed that the socialists aimed at dismantling the patent system: "There is … quite a huge difference, as far as the position of EPP-ED is concerned, to the Rocard position: the Rocard amendments aim, and I think this is also true for the compromise amendments, for putting the patent system as a whole in question." Meanwhile Lehne seems to have come under pressure from his own group and is trying to dissimulate his own aims, which remain quite different from those of the majority of !MEPs.

Real guidance postponed to fictitious "annual scrutiny"

This is a nice secondary title

Moreover, Lehne does not really want to give any guidance apart from some abstract principles, which, according to his previous text, are already known since the 1970s:

The legislator has to formulate abstract and general rules that need interpretation when applied. In the field of legislation that evolves rather quickly, as in the case of computer-implemented inventions, it is not possible to cover all possible cases submitted to the patent offices and courts over the next decate. The application of the rules of this directive is up to the patent offices and courts. We gave clear instruction to them and we included the guidelines for the interpretation of the legal provisions in the directive. But we are well aware that the commission and the parliament will scrutinise, on an annual basis, the future developments of the practise of the patent offices and the judgements of the courts in order to intervene if necessary.

This is a nice secondary title

Annual scrutiny of patent caselaw by Parliament would be nice but is unrealistic and not planned by anyone. Once property rights are sanctioned by this directive, they can hardly be influenced by annual decisions, and the Parliament does not have the right to adapt legislation, neither alone nor by proposing something to the Commission and Council.

Even during the three years during which, due to an initiative from the Commission, the directive was under scrutiny by the Parliament, very few !MEPs looked at the gory details of patent jurisdiction. All Lehne ever did was to take the pressure of scrutiny away from the patent establishment, e.g. by claiming that "there have not been any reports on unjustified claims over the last ten years" (see above) and presenting the new EPO doctrines which this directive attempted to codify, as something from the 70s that really needed no scrutiny.

Unless otherwise stated, the content of this page is licensed under Creative Commons Attribution-ShareAlike 3.0 License