EU Directive on the Patentability of Computer-Implemented Inventions The proposed European Union Directive on the Patentability of Computer-Implemented Inventions has become a major arena for policy conflicts over the granting of patents over computer-implemented inventions, software and business methods. History The directive was initially proposed by the European Commission as a way 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 US law), because business methods as such are not patentable under the different European national patent laws and under the European Patent Convention. Transformation by the European Parliament In September 2003, the European Parliament finally passed the directive, in a heavily amended form http://swpat.ffii.org/papers/europarl0309/index.en.html, which would place 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"); and a blanket rule that patents cannot be used to prevent interoperability between computer systems. An advocate of software patents, however, stated a concern that the Parliament's wording might extend the ban on software patents to inventions potentially implementable in software, such as signal processing equipment (http://216.92.57.242/patentepi/data/040901SoftPat-10-FINAL.pdf, pages 8, 15). Politically, these amendments were supported almost unanimously by small parties on both the right and left, while the larger groupings (social democrats, liberals and conservatives) were all split, with the balance of social democrats leaning in favour of amendment, and conservatives leaning against. The Parliament's amendments were a major defeat for the directive's original proponents. Rather than being a confirmation of the global practice of granting software patents, the directive had placed real and substantial limits on patentability. Reversion by the Council of Ministers Under the codecision procedure, the Council of the European Union (or Council of Ministers) could have withdrawn the proposal, or sent it back to the Parliament, possibly in a modified form. In the event, on 18 May 2004, the Council agreed in an advisory vote to resubmit 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 the Parliament's amendments. Critics of the proposal point out that the "technical character" requirement is interpreted so loosely as to allow almost unlimited patentability of software. The Council has yet to formally approve this resolution, and opponents are lobbying at European and National level to prevent this. If approved by the Council, the revised proposal will be resubmitted to the Parliament, which will only be able to overturn it by an absolute majority of members (rather than a majority of members present and voting). Analysis of the Council of Ministers The Committee of Permanent Representatives which assists and advises the Council is comprised of civil servants from national ministries of governments rather than elected parliamentarians. Furthermore, the members of the patent working group which works on a common position which the national ministries can adopt are civil servants from the national patent offices and other pro-patent people. Finally, the ministries which decide are those with strong connection to the juridical world, which benefits from software patents. This means the Council is less aware of the concerns of those (such as academics, and individual and small to medium software developers) who advocate limits on patentability. It is also fairly isolated from national constituencies. Governments tend to be more attuned to the concerns of organisations such as the Business Software Alliance (BSA), than those of the Parliament or constituents. Letter writing campaigns, coalition building and reinforcement of the scholarly case against unlimited patentability, may nonetheless "trickle up" through governments to the Council. Subsequent developments In an unprecedented move, the Dutch national parliament passed a motion requesting that the nation's ministerial representative on the Council, Laurens Brinkhorst, change his vote on the Council's version of the directive, from "in favour" to abstension. Brinkhorst has stated that he will not do this. The council's confirmation (or otherwise) of the President's "compromise" has also been delayed. http://europa.eu.int/ida/en/document/3378/194/council The Polish government announced on November 16, 2004, that it could not "support the text that was agreed upon by the EU Council on May 18, 2004" http://www.euractiv.com/Article?tcmuri=tcm:29-132419-16&type=News making unlikely that the text as revised by the Council will be approved by this very Council, by the end of November 2004, to return to the Parliament at the end of the co-decision process. Reactions The directive catalysed a campaign by diverse opponents of software patents, who took the opportunity afforded by the introduction of this harmonization directive to argue that software patents are neither economically desirable nor mandated by international law. The FFII and the EuroLinux Alliance played key roles in coordinating this lobbying campaign, which drew support from some free software and open source programmers, some academics, some small business groups, and some commercial software developers. Many of these constituencies 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 campaign in its turn was characterised by advocates of software patents as "a small but highly organised and vocal lobby" http://www.out-law.com/php/page.php?page_id=softwarepatentsin1092939670&area=news. On the other hand, the European Information and Communication Technology Association (EICTA) has warned that "thousands of jobs and inventions were at risk because of opposition from the European parliament to a draft EU directive giving patent protection to scores of new products" http://www.guardian.co.uk/business/story/0,3604,1351216,00.html. EICTA's position has in turn been characterised by opponents of software patents as "dominated by patent lawyers from the patent arms of large corporate members" http://swpat.ffii.org/players/eicta/index.en.html, "most of which qualifying as non European companies" http://wiki.ael.be/index.php/AgoriaRepresentativity and "with a patent policy (...) tailored to the special interests of a few large corporations (...)" http://www.nosoftwarepatents.com/en/m/politics/organizations.html. Software Patents and International Treaties Whether international law mandates software patents is a controversial question. The World Trade Organisation's TRIPS Agreement includes a requirement that: "(...) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application" (Art. 27(1)). The only avenue open for completely avoiding a requirement that algorithms be patentable is to define them as not being "inventions" (eg Art 1(2) UK Patents Act); or/and to define them as being non-technical and thus not in a "field of technology". This distinction is arbitrary but also self-consistent, in that it makes perfect sense to distinguish between "technical" processes and devices (i.e. those tied to the physical world) and informational or mathematical processes which have no necessary connection to physics. Because the "field of technology" requirement in TRIPs had its origins in European patent laws, Europe is, in legal terms, free to take steps to define the concept in either a broad or narrow way. In fact, some people argue that the principle of software patents breaches those very international treaties which impose them according to others. See also Community Patent Software patent Software patents under the European Patent Convention Strasbourg Convention on the Unification of Certain Points of Substantive Law on Patents for Invention (1963) External links European Commission's page on the Patentability of computer-implemented inventions FAQ about the directive, on the UK Patent Office site Software patent wiki overview Reports on the EP Roll Call votes (for EP re-election) co-decision procedure explanation Information on the codecision procedure which rules the directive process Top Reasons why no software patents History of the Directive proposal from FSF Europe(Italy) FAQ: The EU vote on software patents - what does it mean? http://www.softwarepatents.co.uk/ A site opposing software patents and the proposed directive "Software patents in Europe: debunking the myths", by Patent Lawyer John Gray Patents for Innovation, a site by the European Information and Communication Technology Association (EICTA), which supports the directive The Proper Balance of Competition and Patent Law and Policy (PDF), A Report by the US Federal Trade Commission The patentability of computer programmes: Discussion of European-level legislation in the field of patents for software (PDF), A working paper of the European Parliament: Directorate-General for Research Enforcing small firms' patent rights (PDF) A study funded by the European Commission, Enterprise Directorate-General Opinions on www.beauprez.net Compliance of the EP and Council drafts with international treaties Why are software patents illegal under international law? In Defence of the Software Author: A Study of Copyright and patent law interactions. Most Popular Articles: Music    Musical Instruments    Guitar    Classical Music    History    Music Definition    Country Music    Rock Music    Pop Music    Hip Hop    Rap    DJ    Video Games    Casino Games    Poker    Blackjack    Casinos    Real Estate    Loan    Auction    eBay    Marketing    Search Engine Optimization    File Sharing    MP3    Music Industry    Kazaa    Internet    Supermodel    Fashion    Fashion Designers    Erotica    Modeling    Clothing    Boots    Shoes    Diamond Engagement Rings    Diamond    Rugs    Gospel Music    Affiliate    E-Commerce    Radio This article is licensed under the GNU Free Documentation License at http://www.gnu.org/copyleft/fdl.html You may copy and modify it as long as the entire work (including additions) remains under this license. You must provide a link to http://www.gnu.org/copyleft/fdl.html To view or edit this article at Wikipedia go to http://www.wikipedia.org/wiki/EU_Directive_on_the_Patentability_of_Computer-Implemented_Inventions