Big boys aim to seal IT patents win

By Anna McLauchlin

Date: 30/06/05

Big software developers may have won the first round on patenting their inventions by prevailing in a Parliamentary committee debate but the outcome of the plenary vote on 6 July is not a foregone conclusion.

The 22 June vote in the European Parliament's legal affairs committee came down on the side of the pro-patent lobby, backing a draft that came close to the member states' position that gives a wider scope for what can and what cannot be patented.

MEPs also asked for closer monitoring of the patents that are issued and their effect on businesses.

Although plenary votes usually follow the committee vote, Parliamentary officials say that there are still mixed feelings within the majority centre-right (EPP-ED) group as well as the Liberals (ALDE). The Socialists (PES) are united in backing French colleague Michel Rocard's report, which supports the open source lobby's argument that software should not be patentable.

"The risk is quite high that the debate will be reopened and people will want to pass different amendments," said one, adding that "if you look at past form all parties have been all over the place".

Jacqueline Minor, director of the European Commission's knowledge economy unit, admitted at a conference last week that there was no firm way of knowing what the effect of the law, in whichever form it takes, might be.

"There is a dearth of empirical evidence," she said. "[The directive] is shaking our perception of what should and what shouldn't be in the public domain and we don't have sound economic evidence to help us."

As a result, some argue that the proposal will open the door to too many patents, stifling innovation and killing off small companies, while others claim that there is a need for a solid EU law for patents to maintain the bloc's competitive edge.

"The kind of amendments the rapporteur is proposing would render most electronic patents obsolete," said UK Liberal deputy Sharon Bowles, who happens to be a patent lawyer. "He [Rocard] doesn't intend the ramifications to be that wide but that would be the result."

The worst outcome would be a "bad directive", Bowles added, because failure to protect patents in Europe would discourage foreign investment.

As it stands, companies can seek patents on their computer-related inventions from the European Patent Office, leaving it to the courts to judge on their legal basis if there is a dispute.

Czech Christian Democrat Zuzana Roithová said: "The Council's draft promises to exclude pure software and business methods from patentability. But the interpretation and application of its definitions will not deliver this promise. We need legal clarity that enables us to say 'No' to trivial patents such as virtual shopping baskets and 'Yes' to useful computer-aided inventions such as engine control or household appliances."

Lobbying groups are working themselves into a frenzy to swing the final vote in their favour.

Rudy Provoost, chief executive of Philips Consumer Electronics, asked people attending a conference on 22 June to use the next few weeks to lobby MEPs. Open source support organisation FFII held a conference yesterday (29 June) to challenge claims that the law would be good for small businesses.

Article reports on a vote in the European Parliament's Legal Affairs Committee on the proposed Directive on the patentability of computer-implemented inventions, 22 June 2005. Author says that the side of the pro-patent lobby emerged as winner, with MEPs backing a draft that came close to the Member States' position that gives a wider scope for what can and what cannot be patented. MEPs also asked for closer monitoring of the patents that are issued and their effect on businesses.

• Primary Source

European Commission: PreLex: COM (2002) 92, Proposal for a Directive on the patentability of computer-implemented inventions http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=172020

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