Directive on the patentability of computer-implemented inventions
Encyclopedia
The Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (Commission proposal COM(2002) 92), procedure number 2002/0047 (COD) was a proposal for a European Union
(EU) directive
aimed to harmonise national patent
laws and practices concerning the granting of patents for computer-implemented inventions
, provided they meet certain criteria.
The proposal became a major focus for conflict between those who regarded the proposed directive as a way to codify the case law of the Boards of Appeal of the European Patent Office
(unrelated to the EU institutions) in the sphere of computing, and those who asserted that the directive is an extension of the patentability
sphere, not just a harmonisation, that ideas are not patentable and that the expression of those ideas is already adequately protected by the law of copyright
.
Following several years of debate and numerous conflicting amendments to the proposal, the proposal was rejected on 6 July 2005 by the European Parliament
by an overwhelming majority of 648 to 14 votes.
initiated a proposal for a directive
to codify and "harmonise" the different EU national patent laws and cement the practice of the European Patent Office
of granting patents for computer-implemented inventions provided they meet certain criteria (cf. software patents under the European Patent Convention
). The directive also took on the role of excluding "business methods" from patentability (in contrast with the situation under United States law
), because business methods as such are not patentable under the different European national patent laws or under the European Patent Convention
.
Opponents of the original directive claimed that it was a thinly disguised attempt to make all software patentable. Supporters, however, argued that this was not the case since the proposal explained in several locations (pages 11, 14, 24, 25) that there should be no extension to the existing scope of patentability for computer programs and that pure business methods implemented in software would not be patentable. Only computer programs which provided a "technical contribution" would be patentable.
This reliance on the word "technical" was an important weakness in the directive, since it is not a word that has a well-defined meaning, and a "technical contribution" was only defined as being "a contribution to the state of the art in a technical field which is not obvious to a person skilled in the art." (See Article 2 of the proposal). Nevertheless, the term has been used as a benchmark for what is and is not patentable by the European Patent Office
and by individual national Patent Offices and courts in Europe (particularly the United Kingdom
and Germany) since the early 1980s. A general understanding of its meaning can be gleaned from studying the resulting case law, summarised in Software patents under the European Patent Convention
. The subsequent failure of the European Parliament to develop an acceptable definition of what was meant by the word technical illustrates the difficulty inherent in attempting to do so.
passed the directive in a heavily amended form, which placed significant limits on the patentability of software. The most significant changes included:
Patent attorney
Axel H. Horns, however, voiced concern that Parliament's wording might extend the ban on software patents to inventions potentially implementable in software, such as signal processing equipment.
Politically, these amendments were supported almost unanimously by small parties on both the right and left, while the larger groupings (socialists
, liberals
and conservatives
) were all split, with the balance of socialists leaning in favour of amendment and the balance of conservatives leaning against.
Parliament's amendments were a major defeat for the directive's original proponents. Rather than confirming the practice of granting patents for computer programs which provide a technical contribution, the revised directive placed substantial limits on patentability.
(representing national Governments) must approve a text in identical terms in order for a proposal to become law. On 18 May 2004, the Council agreed in an advisory vote to resubmit to Parliament what was described as a "compromise
version" of the proposal. The agreed version permitted patenting of computer-implemented inventions (providing the inventions have a "technical character") and overturned most of Parliament's amendments. Critics of the Directive argued that the "technical character" requirement was open to too much interpretation and could lead to almost unlimited patentability of software. Proponents, also, felt that the amended version contained too many ambiguities to be capable of meeting the original purpose of the Directive, which was to harmonise the law across Europe. Nevertheless, the Council formally approved this resolution on 7 March 2005. The revised proposal was resubmitted to Parliament.
national parliament passed a motion requesting that the nation's ministerial representative on the Council, Laurens Jan Brinkhorst
, change his vote on the Council's version of the directive, from "in favour" to abstention. Brinkhorst stated that he would not do this. The Council's confirmation (or otherwise) of its President's "compromise" had also been delayed.
The Polish
government announced on 16 November 2004, that it could not "support the text that was agreed upon by Council on 18 May 2004". A joint press release by the FFII
, the Internet Society
Poland, and NoSoftwarePatents.com, supported the concerns of opponents of the Council directive, stating:
On 7 December 2004, the Belgian Minister of Economic Affairs, Marc Verwilghen
, stated that no Council decision would be taken until 2005 "for the reason that the qualified majority does not exist anymore". However, amid rumours of a change in the Polish position, the 13–15 December meeting of the Council's Committee of Permanent Representatives determined that a qualified majority appeared to exist, and that the Council's revised version of the directive would be scheduled for formal adoption by the Council, without further debate, probably at the Agricultures and Fisheries Council meeting on the 21st and 22 December 2004.
Statements expressing reservations were attached to this Common Position by Belgium
(which abstained), France
(which hoped for further changes to the directive), the Netherlands
(where the parliament requested their representative vote against), Poland (which was opposed until recent diplomatic pressure), Hungary
and Latvia
. Germany
was ambivalent, saying that the text of the directive could benefit from improvements.
Due to the expressed reservations and especially to opposition from Poland, whose Minister of Science and Information Technology made a special journey to Brussels to demand that the directive be dropped from the agenda, the Council's vote was postponed "indefinitely".
Meanwhile, a group of 61 MEPs from 13 countries tabled a "motion for a resolution" to restart the entire legislative process. On 2 February 2005, JURI, the Legal Affairs Committee of the European Parliament, voted 19-1 in favour of asking the Commission to withdraw the directive and restart the process.
The next day, Nicolas Schmit
, deputy foreign minister of Luxembourg
(which at that time chaired the Council), said that he would instead ask the Council to formally adopt the draft directive at a meeting on 17 February. Although Poland
stated it would only oppose this if other countries raised an objection, reports of opposition from Denmark
, the Netherlands
and Spain
ensured that the common position was not on the agenda for that meeting of the Commission.
On 17 February, Parliament's Conference of Presidents (the President of the Parliament and the leaders of the political groups) approved JURI's request to restart the process, and agreed to pass the request to the European Commission. On 24 February, a plenary session of the European Parliament reinforced this message, inviting the Commission to reconsider, but on 28 February the Commission refused the parliament's request.
The "common position" reappeared on the agenda of the Council's 7 March meeting as an "A-item" for adoption without discussion. At the Competitiveness meeting of the Council, Denmark requested that this be removed. The President of the Council, seemingly in breach of the Council's procedures, opposed this, "for administrative reasons" and because it would defeat the logic of the directive. The Danish representative accepted this at face value, declined to object formally, and entered Denmark's objections into the record. The common position was thus adopted without debate, and referred to the European Parliament for a second reading, with dissenting statements and caveats from a number of countries. In the event, only Spain had actually voted against: Austria
, Belgium and Italy
abstained (which has the same effect as voting against, given the way Qualified Majority Voting works).
, this "vote marks a turning point in the protracted battle over the law, which has split the software industry and sparked severe recriminations."
On 5 July 2005, the committee's report passed to a plenary session of Parliament for debate by all MEPs. On 6 July 2005, Parliament rejected the proposal by a very large majority (648 in favour of rejection, 14 against and 18 registered abstentions out of 729 total MEPS) without considering any of the other 175 proposed amendments. Under the codecision procedure, the legislative process ended with this rejection and the proposed directive did not become law in any form. This was the first and the only time a directive was ever rejected by Parliament at second reading.
The vote was the result of a compromise between the different parties: those in favour of software patents feared a text that would heavily limit its scope, while those against rejected the whole principle. Heavy defeat was the "least worst option" to both sides. In addition, some saw the defeat as an expression of Parliament's indignation about the handling of the proposal by the Council of the European Union
and the European Commission as well as its concerns about the content of the proposal itself.
, which is not legally bound by any EU directive but generally adapts its regulations to new EU law, has no reason or incentive to adapt its practice of granting patents on computer-implemented inventions under certain conditions, according to its interpretation of the European Patent Convention
and its Implementing Regulations.
, IBM
, Hewlett-Packard
and the European Patent Office.
The European Information and Communication Technology Association (EICTA) stated that the directive "is extremely important for the future of innovation in Europe as it concerns two-thirds of all inventions in the European hi-tech industry". This position was characterised by opponents of software patents as "dominated by patent lawyers from the patent arms of large corporate members", "most of which qualifying as non European companies" and "with a patent policy (...) tailored to the special interests of a few large corporations (...)". After the heavily modified draft directive was finally rejected, EICTA's Director General said, "This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe. ... 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."
s, who argued that software patents were neither economically desirable nor mandated by international law. The FFII
and the EuroLinux
Alliance played key roles in coordinating this campaign, which drew support from some free software
and open source
programmers, some academics, some small business groups, and some proprietary software
developers. Many of these organisations expressed concern over what they saw as abuses of the software patent system in the USA, and argued that although some software patents might be beneficial, the net effect of the Commission's proposals would be to suppress innovation and dampen legitimate competition. The opponent's campaign in its turn was characterised by supporters of the directive as "a small but highly organised and vocal lobby", with EICTA stating that "Those who depict the draft directive on the patentability of computer-implemented inventions as some sort of 'software patent law' are at best misinformed and at worst dishonest, malicious and disrespectful of the European democratic process".
Figures who have supported the campaign against software patents in Europe include Tim Berners-Lee
, developer of the World Wide Web
, and Linus Torvalds
, creator of the Linux
kernel. Politicians opposed to the directive included Michel Rocard
. Political opposition was founded both on opposition to software patents and towards what was considered heavy-handed management by the Commission.
. It also raised concern about the balance between the Council (of member state governments) and Parliament (of elected members from member states). When the Commission rejected Parliament's request to restart discussion on the directive, this led to debates over how much power the Commission should have compared to Parliament and member states. Some MEP
s saw the affair as part of a power struggle between the two bodies. Others believed that the real debate was more about whether Council should be able to overrule Parliament, or vice versa.
. Article 52 prohibits certain patents, including patents on programs for computers, but only as such. It is often interpreted by European Patent Office
as well as by courts in EU countries, that invention should have technical character. For example, while a mathematical method is not patentable, an electrical filter designed according to this method would not usually be excluded from patentability by Article 52(2) and (3).
Final interpretation of the law in this area thus continues to be the responsibility of national courts, following national case-law (except when a European patent application is refused or when a European patent is revoked in opposition proceedings before the EPO, in which case the EPO has the final say regarding the interpretation of the EPC).
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
(EU) directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
aimed to harmonise national patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
laws and practices concerning the granting of patents for computer-implemented inventions
Software patent
Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
, provided they meet certain criteria.
The proposal became a major focus for conflict between those who regarded the proposed directive as a way to codify the case law of the Boards of Appeal of the European Patent Office
Appeal procedure before the European Patent Office
Decisions of the first instances of the European Patent Office can be appealed, i.e. challenged, before the Boards of Appeal of the EPO, in a judicial procedure , as opposed to an administrative procedure. These boards act as the final instances in the granting and opposition procedures before the...
(unrelated to the EU institutions) in the sphere of computing, and those who asserted that the directive is an extension of the patentability
Patentability
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...
sphere, not just a harmonisation, that ideas are not patentable and that the expression of those ideas is already adequately protected by the law of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
.
Following several years of debate and numerous conflicting amendments to the proposal, the proposal was rejected on 6 July 2005 by the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
by an overwhelming majority of 648 to 14 votes.
Original draft
On 20 February 2002, the European CommissionEuropean Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
initiated a proposal for a directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
to codify and "harmonise" the different EU national patent laws and cement the practice of the European Patent Office
European Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
of granting patents for computer-implemented inventions provided they meet certain criteria (cf. software patents under the European Patent Convention
Software patents under the European Patent Convention
The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973...
). The directive also took on the role of excluding "business methods" from patentability (in contrast with the situation under United States law
Software patents under United States patent law
Software or computer programs are not explicitly mentioned in United States patent law. In the face of new technologies, decisions of the United States Supreme Court and United States Court of Appeals for the Federal Circuit in the latter part of the 20th century sought to redefine the boundary...
), because business methods as such are not patentable under the different European national patent laws or under the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
.
Opponents of the original directive claimed that it was a thinly disguised attempt to make all software patentable. Supporters, however, argued that this was not the case since the proposal explained in several locations (pages 11, 14, 24, 25) that there should be no extension to the existing scope of patentability for computer programs and that pure business methods implemented in software would not be patentable. Only computer programs which provided a "technical contribution" would be patentable.
This reliance on the word "technical" was an important weakness in the directive, since it is not a word that has a well-defined meaning, and a "technical contribution" was only defined as being "a contribution to the state of the art in a technical field which is not obvious to a person skilled in the art." (See Article 2 of the proposal). Nevertheless, the term has been used as a benchmark for what is and is not patentable by the European Patent Office
European Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
and by individual national Patent Offices and courts in Europe (particularly the United Kingdom
Software patents under United Kingdom patent law
There are four over-riding requirements for a patent to be granted under United Kingdom patent law. Firstly, there must have been an invention. That invention must be novel, inventive and susceptible of industrial application...
and Germany) since the early 1980s. A general understanding of its meaning can be gleaned from studying the resulting case law, summarised in Software patents under the European Patent Convention
Software patents under the European Patent Convention
The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973...
. The subsequent failure of the European Parliament to develop an acceptable definition of what was meant by the word technical illustrates the difficulty inherent in attempting to do so.
Transformation by the European Parliament
On 24 September 2003, the European ParliamentEuropean Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
passed the directive in a heavily amended form, which placed significant limits on the patentability of software. The most significant changes included:
- a definition of the "technicity" requirement for patentability which distinguishes between abstract information-processing processes and specific kinds of physical processes (only the latter are "technical");
- a blanket rule that patents cannot be used to prevent interoperabilityInteroperabilityInteroperability is a property referring to the ability of diverse systems and organizations to work together . The term is often used in a technical systems engineering sense, or alternatively in a broad sense, taking into account social, political, and organizational factors that impact system to...
between computer systems.
Patent attorney
Patent attorney
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition...
Axel H. Horns, however, voiced concern that Parliament's wording might extend the ban on software patents to inventions potentially implementable in software, such as signal processing equipment.
Politically, these amendments were supported almost unanimously by small parties on both the right and left, while the larger groupings (socialists
Party of European Socialists
The Party of European Socialists is a European political party led by Sergei Stanishev, former Prime Minister of Bulgaria. The PES comprises social-democratic national-level political parties primarily from Member state of the European Union, as well as other nations of the European continent. The...
, liberals
Alliance of Liberals and Democrats for Europe
The Alliance of Liberals and Democrats for Europe is a transnational alliance between two European political parties: the European Liberal Democrat and Reform Party and the European Democratic Party. It has political groups in the European Parliament, the EU Committee of the Regions, the...
and conservatives
European People's Party
The European People's Party is a pro-European centre-right European political party. The EPP was founded in 1976 by Christian democratic parties, but later it increased its membership to include conservative parties and parties of other centre-right perspectives.The EPP is the most influential of...
) were all split, with the balance of socialists leaning in favour of amendment and the balance of conservatives leaning against.
Parliament's amendments were a major defeat for the directive's original proponents. Rather than confirming the practice of granting patents for computer programs which provide a technical contribution, the revised directive placed substantial limits on patentability.
Reversion by the Council of Ministers
Under the codecision procedure, both the European Parliament and the Council of MinistersCouncil of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
(representing national Governments) must approve a text in identical terms in order for a proposal to become law. On 18 May 2004, the Council agreed in an advisory vote to resubmit to Parliament what was described as a "compromise
Compromise
To compromise is to make a deal where one person gives up part of his or her demand.In arguments, compromise is a concept of finding agreement through communication, through a mutual acceptance of terms—often involving variations from an original goal or desire.Extremism is often considered as...
version" of the proposal. The agreed version permitted patenting of computer-implemented inventions (providing the inventions have a "technical character") and overturned most of Parliament's amendments. Critics of the Directive argued that the "technical character" requirement was open to too much interpretation and could lead to almost unlimited patentability of software. Proponents, also, felt that the amended version contained too many ambiguities to be capable of meeting the original purpose of the Directive, which was to harmonise the law across Europe. Nevertheless, the Council formally approved this resolution on 7 March 2005. The revised proposal was resubmitted to Parliament.
Developments between first Parliament decision and Council decision
Subsequently, in an unprecedented move, the DutchNetherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
national parliament passed a motion requesting that the nation's ministerial representative on the Council, Laurens Jan Brinkhorst
Laurens Jan Brinkhorst
Laurens Jan Brinkhorst is a Dutch D66 politician.Brinkhorst was an undersecretary of state of foreign affairs and a minister of agriculture. Furthermore he was the leader of the D66-group in the Second Chamber of the Dutch parliament...
, change his vote on the Council's version of the directive, from "in favour" to abstention. Brinkhorst stated that he would not do this. The Council's confirmation (or otherwise) of its President's "compromise" had also been delayed.
The Polish
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
government announced on 16 November 2004, that it could not "support the text that was agreed upon by Council on 18 May 2004". A joint press release by the FFII
Foundation for a Free Information Infrastructure
The Foundation for a Free Information Infrastructure or FFII is a non-profit organisation based in Munich, Germany, dedicated to establishing a free market in information technology, by the removal of barriers to competition...
, the Internet Society
Internet Society
The Internet Society or ISOC is an international, nonprofit organization founded during 1992 to provide direction in Internet related standards, education, and policy...
Poland, and NoSoftwarePatents.com, supported the concerns of opponents of the Council directive, stating:
at a meeting hosted by the Polish government on the 5th of this month, everyone including representatives of the Polish Patent Office, SUN, Novell, Hewlett-Packard and Microsoft, as well as various patent lawyers, confirmed that the present proposal of the EU Council does make all software potentially patentable.
On 7 December 2004, the Belgian Minister of Economic Affairs, Marc Verwilghen
Marc Verwilghen
Marc Ernest Elisabeth Robert Juliette Verwilghen, born 21 September 1952 in Dendermonde, is a Belgian politician.Verwilghen studied law at the Vrije Universiteit Brussel and the University of Ghent and is the holder of an honorary doctorate from Ghent....
, stated that no Council decision would be taken until 2005 "for the reason that the qualified majority does not exist anymore". However, amid rumours of a change in the Polish position, the 13–15 December meeting of the Council's Committee of Permanent Representatives determined that a qualified majority appeared to exist, and that the Council's revised version of the directive would be scheduled for formal adoption by the Council, without further debate, probably at the Agricultures and Fisheries Council meeting on the 21st and 22 December 2004.
Statements expressing reservations were attached to this Common Position by Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
(which abstained), France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
(which hoped for further changes to the directive), the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
(where the parliament requested their representative vote against), Poland (which was opposed until recent diplomatic pressure), Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
and Latvia
Latvia
Latvia , officially the Republic of Latvia , is a country in the Baltic region of Northern Europe. It is bordered to the north by Estonia , to the south by Lithuania , to the east by the Russian Federation , to the southeast by Belarus and shares maritime borders to the west with Sweden...
. Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
was ambivalent, saying that the text of the directive could benefit from improvements.
Due to the expressed reservations and especially to opposition from Poland, whose Minister of Science and Information Technology made a special journey to Brussels to demand that the directive be dropped from the agenda, the Council's vote was postponed "indefinitely".
Meanwhile, a group of 61 MEPs from 13 countries tabled a "motion for a resolution" to restart the entire legislative process. On 2 February 2005, JURI, the Legal Affairs Committee of the European Parliament, voted 19-1 in favour of asking the Commission to withdraw the directive and restart the process.
The next day, Nicolas Schmit
Nicolas Schmit
Nicolas Schmit is a politician in Luxembourg. A member of the Luxembourg Socialist Workers' Party , he has been a member of the government since 2004....
, deputy foreign minister of Luxembourg
Luxembourg
Luxembourg , officially the Grand Duchy of Luxembourg , is a landlocked country in western Europe, bordered by Belgium, France, and Germany. It has two principal regions: the Oesling in the North as part of the Ardennes massif, and the Gutland in the south...
(which at that time chaired the Council), said that he would instead ask the Council to formally adopt the draft directive at a meeting on 17 February. Although Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
stated it would only oppose this if other countries raised an objection, reports of opposition from Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
and Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
ensured that the common position was not on the agenda for that meeting of the Commission.
On 17 February, Parliament's Conference of Presidents (the President of the Parliament and the leaders of the political groups) approved JURI's request to restart the process, and agreed to pass the request to the European Commission. On 24 February, a plenary session of the European Parliament reinforced this message, inviting the Commission to reconsider, but on 28 February the Commission refused the parliament's request.
The "common position" reappeared on the agenda of the Council's 7 March meeting as an "A-item" for adoption without discussion. At the Competitiveness meeting of the Council, Denmark requested that this be removed. The President of the Council, seemingly in breach of the Council's procedures, opposed this, "for administrative reasons" and because it would defeat the logic of the directive. The Danish representative accepted this at face value, declined to object formally, and entered Denmark's objections into the record. The common position was thus adopted without debate, and referred to the European Parliament for a second reading, with dissenting statements and caveats from a number of countries. In the event, only Spain had actually voted against: Austria
Austria
Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the...
, Belgium and Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
abstained (which has the same effect as voting against, given the way Qualified Majority Voting works).
Second reading in Parliament
In June 2005, the legal affairs committee of the European Parliament discussed the directive and rejected plans for a complete overhaul of the directive. The vote by the committee took place on 21 June 2005, and narrowly decided not to substantially amend the Council version of the directive. According to the Financial TimesFinancial Times
The Financial Times is an international business newspaper. It is a morning daily newspaper published in London and printed in 24 cities around the world. Its primary rival is the Wall Street Journal, published in New York City....
, this "vote marks a turning point in the protracted battle over the law, which has split the software industry and sparked severe recriminations."
On 5 July 2005, the committee's report passed to a plenary session of Parliament for debate by all MEPs. On 6 July 2005, Parliament rejected the proposal by a very large majority (648 in favour of rejection, 14 against and 18 registered abstentions out of 729 total MEPS) without considering any of the other 175 proposed amendments. Under the codecision procedure, the legislative process ended with this rejection and the proposed directive did not become law in any form. This was the first and the only time a directive was ever rejected by Parliament at second reading.
The vote was the result of a compromise between the different parties: those in favour of software patents feared a text that would heavily limit its scope, while those against rejected the whole principle. Heavy defeat was the "least worst option" to both sides. In addition, some saw the defeat as an expression of Parliament's indignation about the handling of the proposal by the Council of the European Union
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
and the European Commission as well as its concerns about the content of the proposal itself.
Consequences of the rejection
Parliament's decision to strike down the final draft has the effect that national laws will not be harmonised. National legislatures may continue to enact laws allowing patents on computer-implemented inventions, should they wish to do so, and national courts may enforce such laws. The European Patent OfficeEuropean Patent Organisation
The European Patent Organisation is a public international organisation created in 1977 by its contracting states to grant patents in Europe under the European Patent Convention of 1973...
, which is not legally bound by any EU directive but generally adapts its regulations to new EU law, has no reason or incentive to adapt its practice of granting patents on computer-implemented inventions under certain conditions, according to its interpretation of the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
and its Implementing Regulations.
Supporters of the proposal
Supporters of the proposed directive included MicrosoftMicrosoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
, IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
, Hewlett-Packard
Hewlett-Packard
Hewlett-Packard Company or HP is an American multinational information technology corporation headquartered in Palo Alto, California, USA that provides products, technologies, softwares, solutions and services to consumers, small- and medium-sized businesses and large enterprises, including...
and the European Patent Office.
The European Information and Communication Technology Association (EICTA) stated that the directive "is extremely important for the future of innovation in Europe as it concerns two-thirds of all inventions in the European hi-tech industry". This position was characterised by opponents of software patents as "dominated by patent lawyers from the patent arms of large corporate members", "most of which qualifying as non European companies" and "with a patent policy (...) tailored to the special interests of a few large corporations (...)". After the heavily modified draft directive was finally rejected, EICTA's Director General said, "This is a wise decision that has helped industry to avoid legislation that could have narrowed the scope of patent legislation in Europe. ... 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."
Opponents of the proposal
The proposal provoked public disagreement by diverse opponents of software patentSoftware patent
Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
s, who argued that software patents were neither economically desirable nor mandated by international law. The FFII
Foundation for a Free Information Infrastructure
The Foundation for a Free Information Infrastructure or FFII is a non-profit organisation based in Munich, Germany, dedicated to establishing a free market in information technology, by the removal of barriers to competition...
and the EuroLinux
EuroLinux
EuroLinux is a campaigning organisation that promotes open source software / free software in Europe, and that are opposed to the European Union's proposals to introduce laws on software patents...
Alliance played key roles in coordinating this campaign, which drew support from some free software
Free software
Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...
and open source
Open source
The term open source describes practices in production and development that promote access to the end product's source materials. Some consider open source a philosophy, others consider it a pragmatic methodology...
programmers, some academics, some small business groups, and some proprietary software
Proprietary software
Proprietary software is computer software licensed under exclusive legal right of the copyright holder. The licensee is given the right to use the software under certain conditions, while restricted from other uses, such as modification, further distribution, or reverse engineering.Complementary...
developers. Many of these organisations expressed concern over what they saw as abuses of the software patent system in the USA, and argued that although some software patents might be beneficial, the net effect of the Commission's proposals would be to suppress innovation and dampen legitimate competition. The opponent's campaign in its turn was characterised by supporters of the directive as "a small but highly organised and vocal lobby", with EICTA stating that "Those who depict the draft directive on the patentability of computer-implemented inventions as some sort of 'software patent law' are at best misinformed and at worst dishonest, malicious and disrespectful of the European democratic process".
Figures who have supported the campaign against software patents in Europe include Tim Berners-Lee
Tim Berners-Lee
Sir Timothy John "Tim" Berners-Lee, , also known as "TimBL", is a British computer scientist, MIT professor and the inventor of the World Wide Web...
, developer of the World Wide Web
World Wide Web
The World Wide Web is a system of interlinked hypertext documents accessed via the Internet...
, and Linus Torvalds
Linus Torvalds
Linus Benedict Torvalds is a Finnish software engineer and hacker, best known for having initiated the development of the open source Linux kernel. He later became the chief architect of the Linux kernel, and now acts as the project's coordinator...
, creator of the Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
kernel. Politicians opposed to the directive included Michel Rocard
Michel Rocard
Michel Rocard is a French politician, member of the Socialist Party . He served as Prime Minister under François Mitterrand from 1988 to 1991, during which he created the Revenu minimum d'insertion , a social minimum welfare program for indigents, and led the Matignon Accords regarding the status...
. Political opposition was founded both on opposition to software patents and towards what was considered heavy-handed management by the Commission.
Concerns about the balance of power
Apart from the issue itself, the legislative process for this directive generated concerns about the balance of power between the European Commission and the European ParliamentEuropean Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
. It also raised concern about the balance between the Council (of member state governments) and Parliament (of elected members from member states). When the Commission rejected Parliament's request to restart discussion on the directive, this led to debates over how much power the Commission should have compared to Parliament and member states. Some MEP
Member of the European Parliament
A Member of the European Parliament is a person who has been elected to the European Parliament. The name of MEPs differ in different languages, with terms such as europarliamentarian or eurodeputy being common in Romance language-speaking areas.When the European Parliament was first established,...
s saw the affair as part of a power struggle between the two bodies. Others believed that the real debate was more about whether Council should be able to overrule Parliament, or vice versa.
Aftermath
As the directive was rejected, pre-existing law has remained in place, and computer-implemented inventions are currently governed by Article 52 of European Patent ConventionEuropean Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
. Article 52 prohibits certain patents, including patents on programs for computers, but only as such. It is often interpreted by European Patent Office
European Patent Office
The European Patent Office is one of the two organs of the European Patent Organisation , the other being the Administrative Council. The EPO acts as executive body for the Organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative...
as well as by courts in EU countries, that invention should have technical character. For example, while a mathematical method is not patentable, an electrical filter designed according to this method would not usually be excluded from patentability by Article 52(2) and (3).
Final interpretation of the law in this area thus continues to be the responsibility of national courts, following national case-law (except when a European patent application is refused or when a European patent is revoked in opposition proceedings before the EPO, in which case the EPO has the final say regarding the interpretation of the EPC).
See also
- Community patentCommunity PatentThe EU patent or European Union patent, formerly known as the Community patent, European Community Patent, or EC patent and sometimes abbreviated as COMPAT, is a patent law measure being debated within the European Union, which would allow individuals and companies to obtain a unitary patent...
- Convention on the Unification of Certain Points of Substantive Law on Patents for InventionConvention on the Unification of Certain Points of Substantive Law on Patents for InventionThe Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, also called Strasbourg Convention or Strasbourg Patent Convention, is a multilateral treaty signed by Member States of the Council of Europe on November 27, 1963 in Strasbourg, France...
(Strasbourg Convention of 1963) - Directive on the enforcement of intellectual property rightsDirective on the enforcement of intellectual property rightsDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is a European Union directive in the field of intellectual property law, made under the internal market provisions of the Treaty of Rome...
- Directive on the patentability of biotechnological inventionsDirective on the patentability of biotechnological inventionsDirective 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventionsis a European Union directive in the field of patent law, made under the internal marketprovisions of the Treaty of Rome...
- Institutions of the European UnionInstitutions of the European UnionThe European Union is governed by seven institutions. Article 13 of Treaty on European Union lists them in the following order: the European Parliament, the European Council, the Council of the European Union, the European Commission, the Court of Justice of the European Union, the European...
- Software patentSoftware patentSoftware patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
- Software patents under the European Patent ConventionSoftware patents under the European Patent ConventionThe patentability of software, computer programs and computer-implemented inventions under the European Patent Convention is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973...
- Software patents under TRIPs AgreementSoftware patents under TRIPs AgreementThe WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights , particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be...
Books
- Müller, FlorianFlorian MüllerFlorian Müller is a lobbyist, entrepreneur, consultant, and the founder of the NoSoftwarePatents campaign. He blogs about patent issues but does not have formally recognised legal qualifications....
(2006), No Lobbyists As Such, memoir of Florian Müller's role in the controversy from 2004 to 2005.
Articles
- Buck, Tobias (20 June 2005) IT groups win EU ruling on patents, Financial TimesFinancial TimesThe Financial Times is an international business newspaper. It is a morning daily newspaper published in London and printed in 24 cities around the world. Its primary rival is the Wall Street Journal, published in New York City....
. - Dutch Parliament causes EU software patents crisis 2 July 2004, The InquirerThe InquirerThe Inquirer is a British technology tabloid website founded by Mike Magee after his departure from The Register in 2001. In 2006 the site was acquired by Dutch publisher Verenigde Nederlandse Uitgeverijen...
. - EU assembly throws out bill to harmonise patents (6 July 2005), ReutersReutersReuters is a news agency headquartered in New York City. Until 2008 the Reuters news agency formed part of a British independent company, Reuters Group plc, which was also a provider of financial market data...
. - EU ministers endorse patent law (7 March 2005), BBC NewsBBC NewsBBC News is the department of the British Broadcasting Corporation responsible for the gathering and broadcasting of news and current affairs. The department is the world's largest broadcast news organisation and generates about 120 hours of radio and television output each day, as well as online...
. - EU parliament votes against software patents bill - EU commission (6 July 2005), Forbes.com.
- EU software patents directive delayed (11 October 2004), iDABC eGovernment News.
- European Parliament rejects computer-implemented inventions directive (6 July 2005). WikiNewsWikinewsWikinews is a free-content news source wiki and a project of the Wikimedia Foundation. The site works through collaborative journalism. Wikipedia co-founder Jimmy Wales has distinguished Wikinews from Wikipedia by saying "on Wikinews, each story is to be written as a news story as opposed to an...
. - European Parliament rejects law on software patents (Update1) (6 July 2005), Bloomberg.com.
- Guadamuz-Gonzalez, Andrés, The Software Patent Debate 1(3) Journal of Intellectual Property Law & PracticeJournal of Intellectual Property Law & PracticeThe Journal of Intellectual Property Law & Practice is a monthly peer-reviewed law journal covering intellectual property law and practice, published by the Oxford University Press. The journal has been published since November 2005. The editor is Jeremy Phillips ....
, 196-206 (2006). - Musker, David, "The Great Free Beer Debate" Journal of Intellectual Property Law & PracticeJournal of Intellectual Property Law & PracticeThe Journal of Intellectual Property Law & Practice is a monthly peer-reviewed law journal covering intellectual property law and practice, published by the Oxford University Press. The journal has been published since November 2005. The editor is Jeremy Phillips ....
, 2007, Vol. 2, No. 12, p799 - Sliva, Jan (6 July 2005) European Parliament nixes software patent law, BusinessWeek Online
- "Software patents law up in the air after Poland pull out" (19 November 2004), EuroActiv.com.
- Mark H. Webbink, A new paradigm for intellectual property rights in software, a 2005 article discussing the directive as well as software/business method patents in general.
External links
- European Commission's page on the Patentability of computer-implemented inventions
- FAQ about the directive and Summary of the issues, on the UK Patent OfficeUnited Kingdom Patent OfficeThe Intellectual Property Office of the United Kingdom is, since 2 April 2007, the operating name of The Patent Office. It is the official government body responsible for intellectual property rights in the UK and is an executive agency of the Department for Business, Innovation and Skills...
site - Information on the directive in relation to free software (FSFE)
- Interview with Mark Webbink, Red Hat's deputy General Counsel
- News story about defeat of CII directive, 6 July 2005
- nosoftwarepatents.com opposes software patents
- softwarepatents.co.uk opposes software patents
- The EU and the software patent directive
- Software patents review, written months after the rejection of the Directive by Ciarán O'Riordan
- The Proper Balance of Competition and Patent Law and Policy (PDF), (Federal Trade CommissionFederal Trade CommissionThe Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
) - Top reasons why there should be no software patents (AEL)
- Transcript of a November 18, 2005 talk on this directive
Studies and working papers
- [ftp://ftp.cordis.lu/pub/innovation-policy/studies/studies_enforcing_firms_patent_rights.pdf Enforcing small firms' patent rights (PDF)] A study funded by the European Commission, Enterprise Directorate-General
- The patentability of computer programmes: Discussion of European-level legislation in the field of patents for software (PDF), working paper of the European Parliament's Directorate-General for Research