The draft Directive has a troubled history, with the Parliamentary vote being postponed twice in response to criticisms that the proposed legislation risked bringing to Europe the more liberal regime of software and business method patenting that exists in the US. It should have been debated by the Council today - but it seems that debate has been postponed.
The Directive seeks to harmonise European rules on the patentability of "computer-implemented inventions" – devices like mobile phones, intelligent household appliances, engine control devices, machine tools and computer program related inventions – but concerns have been raised that the Directive would also govern patents for "actual software".
When the draft finally came before Parliament in September, it was only passed after many amendments were made, pleasing small businesses and developers but angering some of the big players in the industry.
The most controversial amendments provide:
that patents should not be granted for software inventions that implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the machine or network on which it operates;
that the use of a patented technique in order to ensure interoperability between two different computer systems or networks would not be regarded as a breach of that patent; and
that suppliers cannot be sued for infringing a patent – so only the end-users face this risk.
At the time, Commissioner Bolkestein warned that the Commission, which has still to approve the draft, may well withdraw the Directive rather than accept amendments that would dilute patent protection.
An industry group yesterday echoed Bolkestein's concerns. The European Information, Communications and Consumer Electronics Technology Industry Association (EICTA) called upon the Council to distance itself from the Parliament's position.
According to Andy Mattes, President of EICTA, "the European Parliament's version of the Directive would diminish virtually to vanishing point the effective patent protection now available to Europe's world-leading telecommunications industry".
He added that it would also have serious consequences for the computer, software and consumer electronics industries.
EICTA claims to represent more than 10,000 companies across Europe with combined revenues of over €190 billion.
According to the group, the Directive was originally intended to maintain a status quo with regard to patents – allowing a flourishing open source software movement in Europe, while encouraging innovation by SMEs, research institutions and large enterprises by protecting their patents.
But, says EICTA, the amendments will "completely undo the delicate balance intended in the Commission's original proposal."
EICTA therefore called for the forthcoming Irish Council Presidency to continue work on a common position based on the original approach. If the damaging amendments proposed by Parliament are not corrected in Council, then EICTA says it would prefer the draft to be withdrawn entirely, leaving the current system in place, but without the desired harmonisation.
