PATENTS

SOFTWARE PATENTS - EUROPE IS SPLIT

Over the past year or so, much debate and controversy has surrounded the European “Software Patents” Directive (or, to give it its proper name, the Computer-Implemented Inventions Directive). However, this has now moved one step closer to becoming EU law, with the European Council adopting its “Common Position” on the draft Directive on 7 March 2005.

Background

The draft Directive was proposed by the European Commission and agreed by the European Council back in 2002. However, in September 2003 the European Parliament rejected the Directive in its current form.

The European Parliament did not favour a liberal regime of software patenting in the EU, like that in the US. It feared that the Directive could open the floodgates to software patenting by the large corporations at the cost of innovation and the smaller software houses.

Parliament put forward a number of proposed amendments to the draft Directive. However, the European Council has now chosen to ignore a significant proportion of those amendments, largely reverting to the wording of the original 2002 draft as its Common Position.

What the Directive says

The draft Directive permits software to be patented where it is a computer-implemented invention and it “makes a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art”.

Software will not be patentable but inventions that use software may be. This allows patenting of programs such as those for mobile telephone systems, intelligent household appliances and car engine management systems, all of which are computer program-related inventions. However, the status quo remains in that software alone (such as lines of code) will continue to be protected by copyright and will not be patentable in Europe.

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