EU SOFTWARE PATENTS COME A STEP CLOSER

Last week, the European Parliament approved a proposal allowing for the patentability of computer-implemented inventions. However, it added 72 amendments to the original draft, limiting the proposed directive’s scope. The highlights according to the IPKat are as follows:

 The proposed directive is not meant to alter the existing provisions on the patentability of computer-related inventions under the European Patent Convention (EPC). Instead, it aims to provide guidance to the EU Member States in interpreting the EPC.
 In accordance with the EPC, computer programs “as such” remain unpatentable (see Article 5(1)(a)). The proposal also emphasises that computer-implemented inventions do not get special treatment and are still subject to the normal criteria of patentability. The proposed directive just gives guidance on how to apply those criteria.
 The Parliament has deleted a recital stating that the EU and its Member States are bound by TRIPs and that Article 27(1) of TRIPs calls for patent rights to be available for all inventions, including, by implications, computer-implemented inventions. (Amendment 31 deleting what was previously Recital 6).
 The amendments introduce a number of defences, including one where use of the protected material is necessary to ensure interoperability and to allow different computer networks to communicate (Articles 6 and 6a),
 Recital 14 will reiterate that business methods remain unpatentable.
 The EU has expressed its exasperation at the European Patent Office’s lack of transparency and its practice of obtaining payments for the patents that it grants, which, according to the newly introduced and strongly worded Recital 7(1)(b), “harms the public nature of the institution.”

The Commission is unhappy with the extent of the amendments and Commissioner Bolkestein threatened, ahead of the vote, that if the amendments were passed the Commission may withdraw the directive and instead push directly for the EPC to be renegotiated.

The IPKat, in welcoming the draft directive, makes the following comments:

 This directive is a strange exercise in harmonisation. Usually it’s the substantive law that gets harmonised. This time round the substantive law is already harmonised but its mode of interpretation and application to the facts differs from country to country. If this “second tier” of harmonisation succeeds for patents, will it also be used for reinforcing the harmonisation of other IP rights, notably trade marks?

 Recital 6 of the previous draft affirmed the European Union’s commitment to implementing Article 27(1) of TRIPs. Since this provision contained no excuse for omitting any software-related inventions from patentability, it could hardly be expected to survive to the final version of a directive which provides only limited patentability for such inventions. The decision to scrap it was therefore a sensible one.

 The old version of Recital 18 promised that the “interoperability” defence to copyright infringement under the 1991 Software Directive would remain. The new version goes further and confirms that acts permitted under that directive will not infringe a software patent either. This is welcomed in that it fosters the development of new and interoperable software while still protecting a software patent owner against serious unauthorised commercial exploitation of his invention.

 We appear to have a curious situation in which the European Commission is telling Member States how to interpret domestic laws which they adopted in implementing the non-EU European Patent Convention. The reality is not however a problem. What we have is the main power-house states of the EU using the Commission as a mouthpiece for articulating demands to all the other EU Member States that they harmonise the way they apply their laws.

 The deletion of Recital 13 -- which stated that algorithms that do not have a “physical environment” are unpatentable as being non-technical -- does not necessarily mean that suddenly all algorithms are patentable. The basic criteria of patentability still (i) exclude mathematical formulae and (ii) demand industrial applicability. However, if an algorithm can satisfy that criterion, there is no reason why it should be excluded from being patented.

 It is as plain as a pikestaff that business method patents are regarded by most Europeans as a pain in the proverbial and they appear to have left a trail of misery and uncertainty behind them in the US. The IPKat is happy to see them remain out in the cold until a serious case for patenting them can be raised.

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