European Union (EU) - Demise of the Directive on Computer-Related Inventions
Patents on computer-related or implemented inventions are currently granted at the European Patent Office (EPO) provided they meet some criteria, primarily related to the presence of a technical effect.
The absence of harmonized national European patent laws on such issues prompted the European Commission initially to propose in 2002 a directive on computer-implemented inventions. Approval of the directive would have meant the presence of a European Union-wide patent protection law for any computer-based invention.
The proposed directive was supported by large technology firms and by the EPO. Open source developers and small companies opposed the original bill, believing that its language was so broad that practically all software would have been patentable. The European Parliament reviewed and amended the proposed directive in 2003, and sent the amended proposed directive to the Council of Ministers, the joint approval of which was needed to enact the law.
However, the amendments of the Parliament were not satisfactory to the supporters of the directive and were seen as even placing limits on the current practice of the EPO rather than merely just confirming its practice. The Council of Ministers shared this view and did not accept the amendments of the Parliament, proposing instead a new version which was substantially similar to the initial version proposed by the Commission.
Surprisingly, this new proposal did not immediately reach the Parliament because several member state governments did not like the broad new language and questioned the initial vote given by their representatives in the Council of Ministers, requesting the Council’s vote to be postponed. While waiting for a new vote of the Council, the Parliament requested the European Commission to restart the whole process, without success. This procedural impasse was apparently overcome at a meeting of the Council in March 2005, where the Council adopted the new version in the presence of dissenting statements from various countries.
As soon as the amended proposed directive again reached the Parliament, debate ensued as to whether the Council version should be substantially amended or not. More than 100 amendments, some of which were rather restrictive, were proposed. The proposal initially went to the legal affairs committee of the Parliament, which decided not to adopt the majority of the narrowing amendments and only briefly to amend the Council version. The committee’s proposal was then voted by the Parliament in a plenary session on July 6, 2005, where it was rejected by a large majority (648 against 14). The Parliament also decided not to consider the viability of the various restrictive amendments. Rejection of the committee’s proposal was viewed with favor by those opposing software patents, while absence of consideration of the proposed restrictive amendments met the approval of those supporting software patents, because it would have most likely meant a restriction on the current practice of the EPO. Therefore, there is currently no Europe-wide harmonization of patent laws on software-implemented inventions. It remains to be seen if decisions of the EPO granting patents on computer-implemented inventions will be challenged in national courts. Additionally, as things currently stand, EU member states are free to enact national patent laws on computer-implemented inventions broader or narrower than current EPO practice, should they so wish.
