Council clashes with Parliament on software patents

EU ministers have rejected most of the Parliament’s amendments to
the software patents directive. The new Parliament will examine the
text in second reading after the June elections.

The compromise deal tabled by the Irish Presidency on software
patents was approved by the Competitiveness Council on 18 May. Of
the 120 amendments tabled by Parliament, only 21 were kept by EU
ministers. The Austrian, Italian and Belgian delegations abstained
while Spain voted against the proposal. 

The text decides on the issue of defining what is the “technical
contribution” required to patent computer-implemented inventions:
“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 agreed text reads. The difference
between the state of the art and the contribution brought about by
the invention is to be assessed against “the scope of the patent
claim considered as a whole, which must comprise technical

According to the previous version of the text as voted last year
by Parliament, a technical contribution has to offer an “inventive
step” defined as something “new, non-obvious, and susceptible of
industrial application”. It also pushed for exceptions to
patentability to allow more interoperability between different
software. All these were rejected by the Council.

Speaking to EURACTIV before the vote, the Parliament's
rapporteur on the dossier, MEP Arlene MC
(PES, UK), said Member States were bending too
easily under industry pressure. "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

The Commission says the text adopted by
Council maintains the the balance of the initial proposal which it
says aimed at "providing legal clarity while avoiding any drift
towards patents for business methods or computer programmes that do
not contribute to the state of the art". Reacting to the Council
vote, Internal Market Commissioner Frits
said: "It is nothing more than basic common
sense to make sure that inventions are not excluded from patent
protection simply because they use computer software. But the
Commission has always been committed to making sure that patents in
this field, as in any other, cannot be used to squeeze out
legitimate competition or to prevent others getting fair access to
technology and ideas. This text achieves that balance and I very
much hope the new European Parliament will be able to adopt it

The European Industry Association for Information Systems,
Communication Technologies and Consumer Electronics
(EICTA) shifted the pressure on the new
Parliament, calling on MEPs "to support Europe's digital technology
industry as the Council has done today, and drop the more extreme
and economically damaging amendments that the outgoing Parliament
adopted in September 2003".

The Foundation for a Free Information Infrastructure
(FFII) says Germany behaved like the "Trojan Horse
of Bolkestein in the Council" by convincing smaller countries to
change their minds on a text they were initially opposed to.
Responding to EURACTIV, FFII claimed that the Council's version of
the text was inefficient at ensuring the interoperability
exceptions that Parliament had been fighting for. The organisation
is now busy organising national campaigns to make software patents
an issue for the next European elections in June. "All new MEPs
will be briefed on the issue", FFII indicated, saying they had lost
a battle but not the war.

On 20 February 2002, the Commission presented a proposal for a
Directive on the Patentability of computer-implemented inventions
or software patents. The bill went through a first reading in
Parliament on 24 September 2003 with MEPs introducing numerous
amendments which reflected concerns that it would open the door to
unlimited patentability. Supporters of the bill say it is crucial
to encourage Europe's, research, innovation and competitiveness by
harmonising the way patents are treated by national courts across
the EU (for more background, see EURACTIV, 11 May 2004).

The modified text will be submitted for second reading to the
new Parliament after the June 2004 elections. 

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