Draft revision of European Patent Convention covers software

Among the plans are measures to reduce patenting costs, plans to set up a European court system and, at EU member state level, establishing a new Community patent system. However, the most controversial of the EPO's proposed revisions concerns the patentability of software. Software is officially excluded from the scope of patentable inventions in Europe, unless it has a technical effect. Software patents are also the subject of current consultations by the European Commission and the UK’s Department of Trade and Industry.

The EPO is in favour of extending the current patent system’s coverage to software, as is possible in the US, although the draft revised Convention continues to exclude business methods from patent protection.

A group called the Association for the Promotion of a Free Informational Infrastructure (FFII) has published a database detailing some patents already granted by the EPO for software meeting the present technical effect requirement. The patents detailed in the database are accompanied by FFII commentary that highlights perceived risks in their scope. The group observes that some of these patents passed by the EPO are not necessarily enforceable before European courts.

According to the FFII, the EPO’s administrative council has decided in favour of software patents and the EPO proposes to confer special legislative rights on its administrative council. FFII says that the rules of procedure have been determined by the EPO in such a way that national patent delegations can overrule individual items only by a two-thirds majority. Otherwise the will of the EPO will become legally binding in all European countries whose parliaments do not opt out of the European Patent Convention. The FFII reports that the German Ministry of Justice has already threatened to refuse to ratify the new Convention.