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Tension grows as Council prepares to vote on software patents directive

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Published 11 May 2004 - Updated 29 January 2010
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computer-implemented inventions software patent
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The Irish Presidency's compromise deal on the software patents directive is to go to a vote on 18 May without discussion. The text sparked an outcry among MEPs and rights campaigners.

The Irish presidency has tabled a compromise deal on the software patents directive which is scheduled to be voted on by EU ministers at the 18 May Competitiveness Council. According to the Council press service, Germany (abstaining), Belgium (opposed) and Denmark (unpronounced as of yet) are the only countries who have not accepted the compromise. Because there is so little opposition among the Member States, the Irish presidency is considering tabling the text without debate. 

But the draft is already stirring much criticism from anti-patent campaigners. They claim that the amendments introduced by Parliament in September last year have been scrapped almost entirely. And MEPs themselves have expressed dismay at the Council's choices.

If approved by EU ministers, the Irish compromise will have to return to Parliament for a second reading as not all of the MEPs' amendments were taken on board.

The directive was voted on by Parliament on 24 September 2003. MEPs introduced numerous  amendments , reflecting concerns by critics from diverse backgrounds who claimed the Commission proposal would introduce a US-style regime under which large companies can acquire unlimited software patents to protect them from competition. 

MEPs in particular insisted that the directive should not lead to "any drift towards the patentability of unpatentable methods such as trivial procedures and business methods". To them, the technical contribution referred to in the Commission proposal has to offer an "inventive step" defined as something "new, non-obvious, and susceptible of industrial application". They recommended applying a test in order to verify this. In addition, they claimed that a mathematical algorithm in itself should not be patentable unless it its used to solve a technical problem.

The Parliament was also wary not to damage provisions of an existing directive (91/250/EEC on the legal protection of computer programmes) under which rights holders are forced to disclose information to ensure interoperability with other applications.

Positions: 

MEPs from all major political parties have expressed discontent at the Irish presidency compromise for ignoring the Parliament's position. MEP  Arlene MC Carthy (PES, UK), the Parliament's rapporteur on the dossier, told EurActiv she is not surprised at the Council's position: "Member States have been heavily lobbied by industry. The Parliament's vote was clear - we do not want software per se to be patented. We want strict interpretations and criteria for genuine inventions. The Council Common Position is not the final word. The new Parliament will have a second reading and I expect there to be some tough talking and negotiations". 

Speaking to EurActiv, a spokesperson at the  Irish Department of Enterprise, Trade and Employment said the compromise merely reflected the position of Member States' experts at the Council's Working Party on Intellectual Property (Patents). The spokesperson indicated the second reading in the Parliament would provide another opportunity for MEPs to move away from the Council's common position.

European Industry Association for Information Systems, Communication Technologies and Consumer Electronics (  EICTA ) says it is "quite satisfied" with the Irish compromise text. Speaking to EurActiv, it expressed satisfaction at the removal of a proposal from the Luxembourg delegation concerning Article 6a on interoperability. This, EICTA said, would have rendered it "impossible" for European companies to develop and protect innovations that depend on data communications. To EICTA, the Irish compromise would implement the status quo of the European Patents Office "with clarification and tightening", as adovated by the industry association.

The Foundation for a Free Information Infrastructure (  FFII ) is leading a campaign against the directive. It says the compromise agreement clinched by the Irish Presidency discards all the Parliament amendments aimed at limiting patentability. It says that the rejection of the Luxembourg delegation's attempt to ensure interoperability leaves the door open to unlimited patentability of computer programmes, data structures and process descriptions.

Major European companies including Nokia, Philips, Siemens, Ericsson and Daimler Chrysler have issued a joint statement on 13 April 2004. They call for all EU ministers to support the text proposed by the Irish Presidency: "We commend the Irish Presidency for presenting a balanced text which preserves the incentives for European innovation (...) while responding to the European Parliament’s call for limitations to ensure that patentability does not extend into non-technical areas or unduly hinder interoperability in our increasingly networked society," the statement reads.

Internal Commissioner  Frits Bolkestein is strongly opposed to the Parliament's amendments which he thinks are "unacceptable". He threatened to withdraw the proposal altogether and go another route: "If I may be blunt (...) the process of renegotiation of the European Patent Convention would not require any contribution from this Parliament," Bolkestein told MEPs before they voted on the text in September last year.

Next steps: 
  • The EU Council of ministers will vote on the directive on 18 May
  • The Parliament will examine the text for a second reading after the June elections, probably under the Dutch presidency
Background: 

On 20 February 2002, the Commission presented a proposal for a Directive on the Patentability of computer-implemented inventions. These are defined as inventions "involving the use of a computer, computer network or other programmable apparatus". 

Currently, patents for computer-implemented inventions are granted by the European Patent Office (EPO), but are not enforceable in all Member States because of diverging legislation. The Commission argues that the directive would provide more certainty for businesses, encouraging them to innovate and profit from their work. At the same time, it said its objective was to avoid stifling competition in the internal market and to favour small businesses.

To achieve this, the Commission argued patents should be awarded only to inventions "which make a 'technical contribution'- in other words which contribute to the "state of the art" in the technical field concerned". Computer programmes as such, it said, would not fall under the proposal.

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