Patent law passes EP committee without major changes

The Parliament’s Legal Affairs Committee adopted on 20 June the draft directive on the patentability of computer-implemented inventions. Most of the major amendments  proposed by the rapporteur, Michel Rocard, and other MEPs critical of the proposal were rejected. 

Most of the debate has been dealing with the question of whether pure software 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. 

The European Patent Office in Munich has issued 30,000 patents involving software, many of which were issued for pure software. EPO will not be bound by the directive. 

The rapporteur's main objective was to avoid the patentability of pure software. In order to achieve this, he proposed an amendment to change the directive's title to "patentability of computer-aided inventions". In addition, he introduced an amendment asking that the innovation must be of a technical nature: "In particular, the technical contribution must be novel and not obvious to a person skilled in the art." 

The Legal Affairs committee rejected both amendments, but it adopted an alternative amendment defining the scope as "computer-controlled inventions". 

The BSA thinks that "some of the amendments proposed by the Socialist rapporteur, Michel Rocard, could drag Europe’s patent regime back to the 19th century, notably by linking computer-implemented inventions to the obsolete notion of 'natural forces'."  

The FSF claims that "by relying on undefined terms and ineffective limits, the text that the Council has handed to the Parliament would allow patents on software standards, business methods, and website development. "

While EICTA, which represents many large industry firms, says "Europe’s high-tech SMEs are concerned about losing the opportunity to patent their inventions. They are in favour of the harmonisation that this Directive is trying to achieve, as it will improve access to the single market for their inventions", the Business Owners against the Patentability of Software claim that "the present draft directive is a major threat to small and medium-sized enterprises."


  • Parliament adopted, on 24 September 2004, a report that was critical of the patentability of pure software, as opposed to a technical innovation of which software is only one part. 
  • This report, which was in contradiction to the opinion of Arlene McCarthy (PSE), rapporteur of the first reading, was largely rejected by the Council with a statement on a common position in December 2004. 
  • For the second reading, Mrs McCarthy was replaced by the former French Prime Minister Michel Rocard (PSE), who had spoken out before as being more critical of the patentability of pure software. 
  • The dossier led to a major confrontation in Parliament between industry associations like EICTA and the BSA on the one hand side and a movement led by free and open source software activists, with FFII and FSF at the helm, on the other side. 
  • In its last session before the summer break, which will last from 4 - 7 July, the Parliament's plenary will vote on the report adopted by the Legal Affairs Committee. The plenary has so far widely followed the committee's recommendations. As majorities were quite tight on some key amendments in the committee vote, this may change, however. 
  • Should the plenary vote in tune with the committee, the Council is expected to agree in a common position within one or two months. 
  • The next step would then be the directive's publication in the Official Journal, which would take another few weeks. It would enter into force 20 days thereafter. 
  • Member states would have to transpose the Directive within two years after its entry into force. 

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