Computer patents [Archived]

After the rejection, on 6 July 2005, by the Parliament of the draft directive on the patentability of computer-implemented inventions, often referred to as the ‘software patents directive’, industry and associations are discussing the consequences for Europe’s patent regime and intellectual property rights (IPR) protection for computer programmes. 

With a vast majority of 648 votes against 14 with 18 abstentions, the Parliament rejected the Council's common position on the patentability of computer-implemented inventions - the so-called 'software patents directive'. 

The vote ended a tug of war in which industry groups such as the European Information & Communications Technology Industry Association (EICTA) and the Business Software Alliance (BSA), which have most of the software and embedded devices industries' major players as their members, were pitted against an alliance of small and medium sized enterprises (SME) associations, as well as against a mostly grassroots movement rooted in the Linux community, which had the backing of many smaller software firms, as well as of some of the big players in the Open Source / Open platform software markets. 

The antagonism was reflected even in the title by which both sides referred to the draft directive: while its opponents called it the 'software patents directive', supporters refer to it as the 'CII directive', where CII stands for Computer-Implemented Inventions.   

The European Patent Office (EPO), which is a body founded on the 1973 Convention on the Grant of European Patents (EPC) and independent of the EU, has been granting tens of thousands of patents on computer-related technology, both including mechanical applications and pure software, for many years. Those opposing this practice claim most of it was in violation of the Convention's Article 52, which explicitly excludes "discoveries, ... mathematical methods; ... programmes for computers; ... presentations of information" from patentability. 

All EU member states' patent laws also exclude computer programmes from patentability. Generally, these are treated in a similar way as works of literature or music, and protected by copyright law; the difference being essentially that copyright is granted automatically and cost-free, while patents offer stronger protection, covering also the the programming method itself, independently of any implementation in computer programming language. The US gradually introduced patent protection for computer programmes in the 1980s and 1990s.

In February 2002, the Commission published its proposal for a directive, based on the assumption that the legal uncertainty created by the mismatch between the letter of the EPC convention and EPO's practice, as well as the different practices in the member states, created legal uncertainty and had negative effects on the proper functioning of the internal market. 

The proposal set out, consequently, to "harmonise national patent laws with respect to the patentability of computer-implemented inventions and make the conditions of patentability more transparent".

In first reading, the Parliament amended this proposal strongly, introducing in particular much more severe conditions, which excluded computer programs from patentability. This opinion was rejected by the Council, which meant that the report had to go into second reading. While the rapporteur in first reading, Arlene McCarthy (PSE, UK) was favourable to the Commission proposal, the former French Prime Minister Michel Rocard (PSE), who became rapporteur in second reading, is much more critical of it. 

On 20 June 2005, the Parliament's Legal Affairs Committee adopted a report which broadly approved the Council's common position with only a few amendments. These amendments, if adopted in Parliament, would have been likely to have been accepted by the Council in order to avoid a third reading. 

Following the vote in the committee, the PSE, Green and GUE groups, as well as individual MEPs from the PPE/ED and ALDE groups, tabled a set of 21 amendments, which were more in the spirit of the Parliament's vote in first reading, and unlikely to be accepted by the Council. 

The Foundation for a Free Information Infrastructure (FFII), an anti-patentability lobbying group supported by a large number of mainly smaller software companies, has prepared a compilation of key documents [DE] [FR].

Most of the debate has been dealing with the question of whether pure software, as opposed to software with a mechanical application, such as in an ABS (anti-lock braking system) in a car, should be patentable or not. The classical test that has been applied to a patent application has so far been whether it deals with the forces of nature, which would not be the case with pure software. 

MEPs rejected the directive mainly because of the incalculable results caused by a catalogue of 200 amendments without any clear majorities that could have produced a consistent position of the Parliament. They also blamed the Council and the Commission for their reluctance to take the Parliament's differing position into account.  

After the Parliament's No vote, the rapporteur, former French Prime Minister Michel Rocard  (PSE), commented: "Confronted with threats by the Commission not to to take into account any amendments which would have been adopted in second reading, and in order to avoid that a risky conciliation procedure produces a text that would legalise patents on software, the Parliament has affirmed its backing for the work that has been achieved in first reading. At the same time, Parliament has refused that its perceptions be ignored once more." 

PPE/DE  MEP Joachim Wuermeling said: "For the opponents of software patents now triumphant, the defeat of the directive is a Pyrrhic victory. Even in the Council version, the directive would have provided waterproof protection from a patentability of software. Now, the very legal uncertainty that led to an excess of patent grants in the past persists." Still, Mr. Wuermeling thinks that "the rejection of the directive was the only way out of a completely messed-up situation".

PSE  MEP Erika Mann  said: "I recommended rejecting the draft directive when it became evident during the last few days that there was no majority for a coherent position of the Parliament on any of the directive's crucial points. Instead, the result would either have been left to chance or the adoption of the Council's common position, due to amendments blocking each other."

Gilles Savary, also an MEP for the PSE, said: "This clear victory for the European Parliament brings Europe into the camp of India, making programming language one of our times' universal languages, accessible to all under the protection of copyright. At the same time, it assures the vitality of software innovation in Europe and of Europe's SMEs. thanks to this vote, there is still hope that Europe will bring forth its own likings of Bill Gates, who himself is a child of programming freedom."

Graham Watson MEP,  leader of the ALDE group, said: "It is now time to put an end to the squabbling in Council as there is a pressing need for a Community patent regime that will bring the work of the European Patent Office under democratic scrutiny and reduce the costs and burdens on business in registering inventions."  

Green  group co-president Monica Frassoni  said: "Parliament has used its powers to reject what was a very flawed legislative proposal. The Commission sided with big business and refused to listen to the voice of the Parliament. In rejecting outright our first reading position, which considerably clarified that software should not be patented, the Commission and Council must take the blame for today's failure."

Philippe de Buck, Secretary General with the European business association UNICE,  said: "After a long and difficult debate, the European Parliament took the understandable decision to reject the common position, in order to avoid re-opening an unpredictable discussion on the long-standing basic concepts and definitions of industrial property protection, which would have harmed innovative companies in Europe, small, medium-sized and large. "

The Business Software Alliance said it respected the Parliament's decision: “Although we would have welcomed a harmonisation of laws throughout Europe, at least the intellectual property protection that innovators had yesterday will remain the same tomorrow – and that is critical for European competitiveness,” BSA Director Francisco Mingorance said: "This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe."

Mark MacGann, Director General of EICTA, the European Information & Communications Technology Industry Association, used exactly the same wording: "This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe."

Jim Murray, Director with BEUC, the European Consumer's Organisation said: "Software is already protected by copyright and should not be protected by patents. We regret that the Parliament did not use its legislative power to ensure this fundamental principle."

Arnaldo Abruzzini, Secretary General of Eurochambres, the Association of European Chambers of Commerce and Industry, said: "Despite a profound analysis of the reasons for this outcome, we couldn’t approve a worsening position for SMEs, and now the efforts must be refocused on a general EU patent regime. Businesses must have the opportunity to easily patent inventions at European level, which is a necessary step for access to finance and for marketing inventions. The sooner the EU patent regime enters into force, the better."

UEAPME Secretary General Hans-Werner Müller said: "The Commission missed an opportunity to bring forward a new and more balanced proposal after the request by the European Parliament in February. Subsequent attempts by the rapporteur to amend the Council position and remove software from the scope of the directive were hampered by the intense large industry lobby and this is to be regretted." The official with the European Association of Craft, Small and Medium-sized Enterprises added: "Rejecting the directive is a better outcome for small businesses than agreeing to a text that would allow the patenting of software, which the proposal as it stood would have done.” 

FFII, at the helm of the grass-roots movement lobbying against the directive, said: "This is a great victory for those who have campaigned to ensure that European innovation and competitiveness is protected from monopolisation of software functionalities and business methods. It marks the end of an attempt by the European Commission and governmental patent officials to impose detrimental and legally questionable practices of the European Patent Office (EPO) on the member states. However, the problems created by these practices remain unsolved. FFII believes that the Parliament's work, in particular the 21 cross-party compromise amendments, can provide a good basis on which future solutions, both at the national and European level, can build."

Alain Pompidou, president of the European Patent Office, insisted: "As with all inventions, computer- implemented inventions are only patentable if they have technical character, are new and involve an inventive technical contribution to the prior art. Moreover, the EPO does not grant 'software patents'. [...] In this respect, the practice of the EPO differs significantly from that of the United States Patent & Trademark Office."

The Commission has not made it clear whether or not it will come forward with another proposal on computer patents, but it seems that Commissioner Charlie McCreevy would do so only if explicitly asked by the Parliament. 

As a result of the European Parliament vote, a number of industry associations, ranging from the Business Software Association to Eurochambres, have called for the stalled Community Patent  dossier to be revived. 

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