Showdown in software patents war

The EU tug of war around the patentability of software may be nearing an end as the Parliament prepares to hold its vote in second reading on 6 July 2005. 

 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 anti-blockage 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. 

During the three years since the publication of its first draft, the directive has been subject to strong lobbying efforts from its supporters as well as from its opponents. Industry groups like 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, are pitted against a mostly grassroots movement rooted in the Linux community, which has 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 is reflected even in the title by which both sides refer to the draft Directive: While its opponents call it the "software patents directive", supporters refer to it as the "CII directive", where CII stands for "computer-implemented inventions". 

The situation is further complicated by the fact that many industry players don't speak out on the issue on their own behalf. Software vendors such as MicrosoftApple and Adobe are members as well of BSA as of EICTA, the latter of which has launched the Patents4innovation initiative to deal with the patentability issue. This initiative's website says the directive would secure Europe's position as a leading global innovator, protect innovation and reward R&D, secure jobs, stimulate technology transfer and knowledge-sharing, provide for a fairer patent system across Europe and help avoid re-inventing the wheel.  

Patents4innovation refers to the EPC and points out: "A patent can only be granted for an invention that is new, non-obvious and makes a 'technical contribution'. It cannot be granted for pure software." The BSA, on a somewhat different note, attacked the rapporteur for his reference to forces of nature that an invention must deal with: "The 'forces of nature' concept dates to a time when inventions were primarily mechanical in nature. Incorporating this concept in 21st century legislation could drag European innovators back in time and risk excluding many cutting-edge technologies from patentability both now and in the future."

Those opposing the patentability of software without any mechanical component to it, such as FFII, say: "In the legal tradition patents have been for concrete applications of natural science ('technical inventions'), whereas patents on software cover abstract ideas. When patents are applied to software, the result is such that instead of patenting a specific mousetrap, you patent any 'means of trapping mammals' (or, for an actual example, any 'means of trapping data in an emulated environment')."

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 US have had gradually introduced patent protection for computer programs 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, for which reason 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, are likely to be accepted by the Council in order to avoid a third reading. 

The PSE, Green and GUE groups, as well as single Parliamentarians of the PPE/ED and ALDE groups, have meanwhile tabled a set of 21 amendments, which are 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 rooted in the Linux community, has prepared a compilation of key documents [DE] [FR].

  • During the debate on 6 July 2005, MEPs from most political groups predicted rejection of the draft. Klaus-Heiner Lehne, PPE/DE coordinator in the Legal Affairs (JURI) Committee, said rejection of the bill was a "very real possibility." PPE/DE MEP Piia-Noora Kauppi commented: "No directive would be better than a bad directive."  ALDE MEP Toine Manders said: "It will be a rejection."
  • Economic Affairs Commissioner Joaquín Almunia announced that the Commission would refuse to submit a new draft directive if the Parliament rejected the present one.
  • On 7 July 2005, at noontime, the Parliament's plenary will vote on the directive. To change or reject the text, the parliament needs an absolute majority of the 732 Members for a yes on each amendment.
  • The Council of Ministers would then decide, during its 11 - 12 July 2005 competitiveness meeting in Cardiff, whether or not to accept the result of the Parliament vote. 
  • If such is the case and the Council finds unanimity on those amendments where the Commission gave a negative opinion, the text is adopted as a directive and enters into force 20 days after its publication in the Official Journal. Member States would then have to transpose it within 18 months. 
  • If the Council rejects the text, a conciliation procedure starts within six weeks.  The procedure would take another six weeks, after which period a third reading could start. 

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