Commission presents draft Directive on patent for computer-implemented inventions

The Commission has presented a proposal for a Directive on the protection by patents of computer-implemented inventions to harmonise the approach of Member States’ national patent laws dealing with inventions using software.

The central requirement of the proposal is that, in order to be patentable, an invention must make a contribution in a technical field that is not obvious to a person of normal skill in that field. The EU proposal thus differs from the US approach, as the latter permits patents for software independent of machines and does not necessarily require fresh innovation.


TheBusiness Software Association (BSA)believes that the current practice of the European Patent Office (EPO) is a suitable benchmark for harmonisation in the EU, including the application of the technical effect and technical contribution criteria for patentability. BSA regrets, however, that the draft Directive departs from current EPO practice by excluding software and limiting patent protections to computers and the Commission proposal is there seen as a "step backwards in the European practice".

EuroLinuxstates that overly broad patents not only reduce competition but also reduce innovation in the software industry or in any industry which produces complex systems. Principles such as "the more property, the more innovation" or "stronger patents promote innovative SMEs" are definitely wrong in the case of software.


The Commission's proposal follows extensive consultations since 1997, on the choice between using a copyright or a patent to protect new software. Patents provide an absolute 20-year monopoly, which the owner can exploit for commercial advantage. Copyright provides less protection, but for a longer period of time. Currently national law applies in all cases. European patents therefore constitute a 'bundle of national patents' which must be validated, maintained and litigated separately in each Member State.


The proposal will now have to be adopted by the EU Council of Ministers and the European Parliament under the co-decision procedure.


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