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The detailed letter the Secretary of State promised to send, finally arrived. In this letter, she compares the amendments of the EP with the directive of the Council, basically using the same old arguments. However, it is handy to have them nicely ordered together in one official document for a change.

She once again makes a serious error when she states that "The inventiveness of the invention must be in the technical aspects of the invention. The technical solution to the problem must be inventive". She makes this error when discussing article 2b, which says:

"Technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features."

The "patent claim considered as a whole" must "comprise technical features", yes. But this does not mean that the inventiveness must also be in the technical features, which means the statement of the Secretary of State is wrong, plain and simple.

What's more, a claim like "a computer running a program doing this and that" has technical features (the computer), therefore falls within this definition and can therefore be patented. This effectively opens the way for broad softwarepatents, which everybody fears so much. It is remarkable she made this error, because we explicitly pointed this error out in our reaction to the debate (Dutch) we sent to the Commission of Economic Affairs last week.

What's next?

The Dutch parliament will make a final decision about the position the Minister will take in September. A debate about this issue will take place at Thursday, the 24th of June, 19:45-20:45 CET. Also see the official agenda of the Commission for Economic Affairs. They may also decide to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states.

The political problem they will have to face comes down to choosing between:

a) agree to a directive that tries to allow some softwarepatents running the serious risk of allowing broad softwarepatents after all with devastating consequences for the European Software industry and especially the SMEs that form the heart of our Software Industry.

b) agree to a directive that in order to be sure to spare the European Software industry has no other option then to disallow all softwarepatents, thereby leaving the mostly non-European multinationals "unprotected".

For what it's worth: Over 340.000 European voters that signed the Eurolinux petition urge the European governments, including the Dutch government, to take no chances and choose for protecting the European Software industry. After all, the multinationals have plenty of chance to patent their ideas elsewhere, like for example in the Unites States of America.

What can you do to help?

First of all, if you haven't signed the petition, please do so at: http://petition.eurolinux.org. It can really make a difference, as this story proves.

If you are in a position that you can represent a Dutch company or are a Dutch lawyer, please sign the joint statement: http://wiki.vrijschrift.nl/VerklaringBedrijven

If you really want to help, consider contacting the representatives of your country. Remember, all European countries can legally revoke their vote if they want to and they have the power to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states.

References

[1] Mr.ir. R.B. Bakels. Connected to the Centre for Intellectual Property Right of the University of Utrecht. Author of the "JURI 107" report about Softwarepatents for the European Parliament (together with prof. Hugenholtz). He is considered as one of the leading experts on the subject of Softwarepatents in The Netherlands.

[2] http://www.si.umich.edu/~kahin/mip.html : A very interesting and informative article by Brian Kahin, a visiting professor in the School of Information, Ford School of Public Policy, and Department of Communication Studies, at the University of Michigan. He was formerly Senior Policy Analyst at the White House Office of Science and Technology Policy where he was responsible for the intellectual property and digital economy issues. He warns : "Europe must learn from the mistakes of the US and consider carefully the effect of stifling development before giving the green light to software patents".

About the Author:
Arend Lammertink holds a Masters degree in Electrical Engineering from the University of Twente. He grew up in the town Markelo, where his parents used to run a restaurant, now run by his brother. Today, he lives in Goor with his family and works as a Software Engineer for dGB Earth Sciences that specializes in quantitative seismic interpretation software and services. Most of his work can be downloaded with source code and used free of charge for non-commercial purposes. dGB is an innovative small company that has recently been nominated for the "Overijssel Innovation Award" and made it until the last three candidates.Arend has the full support of his employer for his actions against Softwarepatents because in the end, they are amongst the ones to pay the bill. Arend can be reached at arend /at/ vrijschrift /dot/ nl.