The decision was also welcomed by some of their opponents, those
who feared a narrowing of existing patent laws. The result is that,
at least for now, both sides have to continue dealing with today's
inconsistent approach to patentability across the EU.
The background
Back in October 2000, the European Commission published a
consultation paper in which it acknowledged inconsistent approaches
to patentability across Europe.
Inventors can seek patents from the European Patent Office,
under the 1973 European Patent Convention, or via national patent
offices in EU member states under national law. In theory, the
systems should be consistent: all should follow the
Convention, which says that computer programs "as such" are not
eligible for patenting. But different interpretations of that rule
evolved, with the European Patent Office in particular becoming
rather liberal about its granting of software-related patents.
In 2002, the Commission published a draft Directive that
intended to harmonise the approaches of the various patent offices
and only permit so-called computer-implemented inventions, not pure
software.
The Commission said at the time: "In broad terms, nothing will
be made patentable which is not already patentable. The objective
is simply to clarify the law and to resolve some inconsistencies in
approach in national laws."
Its proposal provided that, in order to be patentable, an
invention that is implemented through the execution of software on
a computer or similar apparatus has to make a contribution in a
technical field that is not obvious to a person of normal skill in
that field. The Commission considered this consistent with the 1973
Convention.
But the text was never agreed. Some feared that Europe would get
a much more liberal regime, like that of the US. Others feared that
they would lose the patent protection they already enjoyed.
The European Parliament considered that the Commission's
original proposal needed tightening to ensure the exclusion of pure
software patents. But its amended proposal was rejected by the
Council of Ministers. The draft was therefore returned to the
Parliament for a second reading.
The Parliamentary rapporteur, former French Prime Minister
Michel Rocard, had put forward a total of 256 amendments, again
intended to restrict the scope of patentability. On Monday, the
CEOs of Alcatel, Ericsson, Nokia, Philips and Siemens had written
to European political leaders calling for the rejection of these
amendments.
Parliament could have amended the Directive – in which case it
would have gone back to the Council of Ministers. But it also had
the power to reject it outright, which is what it did today. By
doing so with an absolute majority of the 732 MEPs (not just a
majority of those present in the chamber at the time), the
Directive falls, rather than reverting to the Council.
Reaction to the vote
The main political parties had already indicated last night that
the vote would reject the Directive, taking the view that
abandoning the current draft was safer than an inadequate
compromise.
Simon Gentry of the Campaign for Creativity – which supported
the Directive – said today’s outcome represents "a lost opportunity
for Europe to establish a common ground for high-tech innovation
that would help foster further successes and development in this
field."
The Free Software Foundation Europe (FSFE) had lobbied against
software patents. It welcomed today's rejection, saying that it
would have supported the Commission's first version of the
Directive but, in light of the amendments introduced by the Council
of Ministers, saw rejection of the Directive as "the last realistic
option to avoid doing irreparable harm to the European
economy."
FSFE President Georg Greve said his group proposes to establish
"an EPO supervision instrument that holds the EPO management liable
for its decisions and prevents further patent system
degradation."
EICTA, which counts Microsoft, IBM, Dell and other leading
technology companies among its members, welcomed today's news.
"This is a wise decision that has helped industry to avoid
legislation that could have narrowed the scope of patent
legislation in Europe," said Marc MacGann, the group's Director
General. "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."
