Controversial software patent directive clears Parliament

Concluding several months of heated debate, the Parliament approved on 24 September a pan-European law governing the application of patents to software programmes.

Currently, patents may be granted by the European Patent Office (EPO), but are not enforceable in Member States because they cover software or business processes which existing law blocks from being patented. Proponents argued that the Directive would clarify what could and could not be patented, offering clarity for businesses.

The disputes that have surrounded the Commission’s draft centred on the proposed pan-European regulation’s ability to encourage innovation and research and development.

Although the new legislation outlaws the American practice of patenting business methods and computer programmes, critics still fear the EU may drift toward the US approach.


Opponents of the law believe it will stifle innovation by granting too much power to the large patent holders. Small-business groups, software developers, economists and corporations criticised the proposal for failing to clearly define patent limits, and thus allowing any software to be patented.

On the eve of the Parliament's vote, two of the open-source community's leading figures,Linus Torvalds and Alan Cox, wrote an open letter to the MEPs urging them to reject the proposal. "Unlike traditional patents, software patents do not encourage innovation and R&D. Quite the contrary", they argued.

Major European and UStechnology companies- including Microsoft, Alcatel and Nokia - pushed hard for the new legislation's approval.

During the plenary debate ahead of the vote,Commissioner Frits Bolkesteincriticised the amendments, arguing that "the majority of those amendments will be unacceptable to the Commission". He said if the "unacceptable" amendments were passed, the Commission could withdraw the directive entirely and seek to achieve patent harmonisation through a renegotiation of the European Patent Convention. "If I may be blunt...the process of renegotiation of the European Patent Convention would not require any contribution from this Parliament," Mr Bolkestein told the Parliament.

After the vote, theCommissiongave a guarded response. "We will carefully analyse the amendments adopted", the EC's spokesman for internal market affairs, Jonathan Todd, said.

Reacting to the vote,European Industry Association EICTAPresident Anthony Parish said, "Parliament has made a great mistake by proposing a number of damaging amendments which will roll back patent protection for Europe's inventors in sectors as diverse as telecommunications, motor vehicles, information technology, machine tools and consumer electronics. As Commissioner Bolkestein said before the EP vote, the proposal before Parliament would only confirm existing European pra ctice for patent protection of inventions implemented in computer programmes. He said that half truths and misconceptions fuelled opposition to the directive. Commissioner Bolkestein was right. EICTA calls upon the Council of Ministers to correct the damage done in Parliament and restore the status quo which has served Europe well".

Rapporteur MEP Arlene McCarthy(PES, North West) said the Parliament has sent a clear message: "We do want strict limits on patentability of software. All the amendments that were adopted were in this direction. We have effectively rewritten the directive."

TheGreen/EFA groupin the Parliament voted against the Commission's draft proposal arguing that it opened the floodgates for software patents in the EU.


The Commission, as the original author of the Directive on the Patentability of Computer-Implemented Inventions in 2001, aimed to introduce a technical adjustment to harmonise the way patents are treated by national governments across the EU. The Commission wanted computer implemented invention patents to be awarded only to ideas that are new, not obvious and have a clear technical effect. This means that patentable software must be connected to a technical device that makes or does something new.

In the Parliament, the vote on the directive had already been delayed twice due to impassioned protests by backers of open-source software (see also

EURACTIV 2 September 2003). The draft received a total of over 100 amendments during the debates, and several amendments that have now passed appear to be a victory for critics of the proposal.

On 24 September, the vote in the Parliament's first reading was 364 in favour, 153 against and 33 abstentions.


This was the first of two votes on the software patent directive in the Parliament. Before the next vote, the directive, including the approved amendments, will be debated by the governments of the Member States. The ministers are scheduled to discuss the issue at their 10 November meeting. Once they agree, the Member States have about 18 months to implement the directive into national legislation.


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