Out-Law News | 06 Jul 2005 | 3:14 pm | 3 min. read
The decision was also welcomed by some of their opponents, those who feared a narrowing of existing patent laws. The result is that, at least for now, both sides have to continue dealing with today's inconsistent approach to patentability across the EU.
Back in October 2000, the European Commission published a consultation paper in which it acknowledged inconsistent approaches to patentability across Europe.
Inventors can seek patents from the European Patent Office, 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 should follow the Convention, which says that computer programs "as such" are not eligible for patenting. But different interpretations of that rule evolved, with the European Patent Office in particular becoming rather liberal about its granting of software-related patents.
In 2002, the Commission published a draft Directive that intended to harmonise the approaches of the various patent offices and only permit so-called computer-implemented inventions, not pure software.
The Commission said at the time: "In broad terms, nothing will be made patentable which is not already patentable. The objective is simply to clarify the law and to resolve some inconsistencies in approach in national laws."
Its proposal 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.
The European Parliament considered that the Commission's original proposal needed tightening to ensure the exclusion of pure software patents. But its amended proposal was rejected by the Council of Ministers. The draft was therefore returned to the Parliament for a second reading.
The Parliamentary rapporteur, former French Prime Minister Michel Rocard, had put forward a total of 256 amendments, again intended to restrict the scope of patentability. On Monday, the CEOs of Alcatel, Ericsson, Nokia, Philips and Siemens had written to European political leaders calling for the rejection of these amendments.
Parliament could have amended the Directive – in which case it would have gone back to the Council of Ministers. But it also had the power to reject it outright, which is what it did today. By doing so with an absolute majority of the 732 MEPs (not just a majority of those present in the chamber at the time), the Directive falls, rather than reverting to the Council.
The main political parties had already indicated last night that the vote would reject the Directive, taking the view that abandoning the current draft was safer than an inadequate compromise.
Simon Gentry of the Campaign for Creativity – which supported the Directive – said today’s outcome represents "a lost opportunity for Europe to establish a common ground for high-tech innovation that would help foster further successes and development in this field."
The Free Software Foundation Europe (FSFE) had lobbied against software patents. It welcomed today's rejection, saying that it would have supported the Commission's first version of the Directive but, in light of the amendments introduced by the Council of Ministers, saw rejection of the Directive as "the last realistic option to avoid doing irreparable harm to the European economy."
FSFE President Georg Greve said his group proposes to establish "an EPO supervision instrument that holds the EPO management liable for its decisions and prevents further patent system degradation."
EICTA, which counts Microsoft, IBM, Dell and other leading technology companies among its members, welcomed today's news. "This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe," said Marc MacGann, the group's Director General. "Parliament has today voted for the status quo, which preserves the current system that has served well the interests of our 10,000 member companies, both large and small."