At present, inventors can seek patents from the EPO, under the 1973 European Patent Convention, or via national patent offices in EU member states under national law.
In theory, the systems should be consistent: all national patent offices should follow the Convention, which says that computer programs "as such" are not eligible for patenting. But different interpretations of that rule have evolved, with many commentators considering that the EPO, in particular, is becoming rather liberal about its granting of software-related patents.
In 2002, the Commission published a draft Directive that was intended to harmonise the approaches of the various patent offices and only permits patents for so-called computer-implemented inventions, not pure software.
The draft Directive provided that, in order to be patentable, an invention that is implemented through the execution of software on a computer or similar apparatus has to make a contribution in a technical field that is not obvious to a person of normal skill in that field. The Commission considered this consistent with the 1973 Convention.
But the text was never agreed. Some feared that Europe would get a much more liberal regime, like that of the US. Others feared that they would lose the patent protection they already enjoyed.
As a result, on 6th July this year, the proposal was killed by the European Parliament. The Commission has no plans to put forward a new draft in the near future.
But this means that the inconsistent practice that caused the Commission to seek to clarify the law is still continuing.
Perhaps as a consequence of this, the EPO has now launched a microsite to provide information about “the law and practice under the European Patent Convention in the field of computer-implemented inventions” and “proposed legislative reforms in Europe in this field.”
The EPO stresses that it does not grant patents for computer programs or computer-implemented business methods that do not involve a technical contribution. Its granting practice, says the EPO, is therefore significantly different from that of the US Patent and Trademark Office.