There will not be any Directive on Computer-Implemented
Inventions following Wednesday's vote. During the debate the
previous day, European Commissioner Joaquín Almunia told MEPs:
"Should you decide to reject the common position, the Commission
will not submit a new proposal."
According to a statement from the European Parliament, attention
now moves to the proposed directive for a Community Patent,
currently in discussion in the Council. According to the
Parliament, the Community Patent has been mentioned by a number of
MEPs as the appropriate legislative instrument to address the issue
of software patentability.
The European Commission proposed the creation of a Community
Patent in July 2000 – three months before it consulted on its
proposal for what became the draft Directive on
Computer-Implemented Inventions.
The Community Patent would give inventors the option of
obtaining a single patent that would be legally valid throughout
the European Union. The proposal aims to lessen the burden on
businesses by making it cheaper to obtain a patent and by providing
a clear legal framework in case of dispute.
At present, patents are awarded either on a national basis or
through the European Patent Office (EPO) in Munich, which grants
so-called European Patents. These are essentially a bundle of
national patents.
The EPO offers a single application and granting procedure and
so saves the applicant the trouble of having to file with a series
of national patent offices. But each Member State may still require
that, in order to be legally valid in their territory, the European
Patent must be translated into their official languages. Moreover,
in the case of disputes, it is national courts that are competent
so that, in principle, there can be 15 different legal proceedings,
with different procedural rules in every Member State and with the
risk of different outcomes.
The proposal for the Community Patent does not seek to amend the
laws on patentability. But under the Commission's proposal, all
Community Patents would be issued by the European Patent
Office.
This is likely to upset those opposed to software-related
patents, because the EPO has to date taken the most liberal
approach to patentability, albeit enforcement has been left to
national courts and national laws. In terms of an agreement reached
by the Council of Ministers in 2003, Community Patent disputes
would go before a new Community Patent Court.
There has been little progress on the Community Patent since
that agreement by the Council. It did not extend to consensus on
the requirements for the translation of patents and on how
infringements of patents which might arise as a result of
mistranslations should be treated. The EU's Competitiveness Council
met in May 2004 to discuss these outstanding matters but also
failed to reach agreement on how to proceed.
