Mueller, founder of Nosoftwarepatents.com, was
prominent in the debate over Europe's proposed patent Directive
earlier this year. In an guest column today on EUobserver.com, he
argues that the Parliament should also call upon the European
Commission to start a new legislative process on the controversial
issue.
At present, inventors can seek patents for computer-related
inventions from the European Patent Office (EPO), 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
have 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.
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.
As a result, on 6th July this year, the proposal was killed by
the European Parliament. The Commission has no plans to put forward
a new draft in the near future.
But this means that the inconsistent practice that caused the
Commission to seek to clarify the law is still continuing.
In his guest column today, Mueller argues that the Parliament
should "call on the administrative council and the president of the
European Patent Office to take the appropriate measures so that the
existing law be complied with," and persuade the European
Commission to start a new legislative process on the controversial
issue.
The objective of the resolution, he says, would be to influence
the policy of the European Patent Office (EPO), and possibly to
request a new proposal for a software patent directive from the
European Commission along the lines of Parliamentary amendments
made to the previous draft.
A parliamentary resolution would not be legally binding upon the
European Patent Office, but Mueller believes that it would carry a
lot of political weight.
According to his column, "lawmakers in EU member countries could
pass national legislation in the spirit of the EP's suggestions,"
and the European Parliament's position would also influence the
patent debate in other parts of the world. In particular he
mentions a patent reform bill that is presently being discussed in
the US Congress, and the as yet unclarified status of software
patents in India, South America, South Africa, and other
regions.
“If Europe doesn't send a signal to the rest of the world, then
the US government might just have its way," writes Mueller.
The intellectual-property activist also comments on the
Community Patent Directive, a proposed law on which the EU has
failed to reach agreement for a number of years.
The Community Patent is intended to 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.
According to Mueller, "a Community Patent Directive could only
achieve its stated goal of making Europe more competitive if it's
part of, or a subsequent measure to, a fundamental paradigm shift
in patent policy" – in effect higher standards and substantially
lower numbers of patent grants.
The European Patent Office currently receives around 180,000 new
patent applications a year, about half of which result in the
issuance of a patent, says Mueller.
