SOFTWARE PATENTS: Will you, won’t you, will you, won’t you, will you join the dance?

CNet is getting rather excited about the interface between the Community Patent and the EPC in relation to software patents (or lack thereof).

The Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation and that the European Patent Office will be bound by this law, it proudly proclaims. It basis this statement on an answer given by the Commission to a question posed by Polish MEP Adam Gierek. He states inter alia:

I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law. Fortunately, the courts in the Member States are making use of their right to rescind patents granted by the EPO for software and business methods

and asks

… does the Commission still stand by the position set out in point 2.3.2 of the proposal for a Council regulation on the Community patent (COM(2000)412 final — 2000/0177(CNS)), namely that the case‑law which the EPO developed for the European patent will apply to the Community patent?

Contrary to the impression given in the CNet report, the Commission’s response isn’t a tub-thumping condemnation of patent protection for software. Instead it is a complex description of who gets to interpret the rules on patentability, as between the EPO and the ECJ. The upshot of this is:

* The pre-grant phase of the Community patent could be governed by the EPC
*Post-grant issues (including validity) will be governed by the Community Patent Regulation. As a result, the EPO would be bound by Community Patent law [with respect to Community Patents only, the IPKat adds]
*Part of the plan is for the EU to accede to the EPC. As a result, the EPO will become part of the Community acquis, and will be subject to interpretation by ECJ. In carrying out this interpretation, the ECJ won’t be bound by the ‘case law’ of the EPO.

The IPKat reckons that all this isn’t saying anything of whether or not it will be more difficult to gain patents for software under the proposed Community patent. At the end of the day, the ECJ would be interpreting the very same wording of the EPC as the EPO is – wording that purports to exclude patent protection for software, and yet has been interpreted by the EPO in a way that has infuriated the anti-software patent lobby. While the ECJ would not be bound to interpret the wording in the same way as the EPO, this does not mean that it would not choose to do so. Moreover, while the EPO might need to defer to the rules of the Community Patent Regulation when dealing with Community Patents, there is no reason why it should be bound by it when dealing with non-CP patents.