MEPs boot up for the next software patents showdown

By Anna McLauchlin

Date: 10/03/05

Now that national governments have rubber-stamped their deal on rules governing the patentability of computer-related inventions (CII) and the European Parliament is left to lick its wounds and move into second reading, the real debate is set to begin.

Politicians are admitting that during the last few weeks the real purpose of the software patent law has become lost behind the inter-institutional wrangling and the intense lobbying.

The CII will provide a legal basis for patents on computer-related inventions. The European Patent Office began issuing such patents twenty years ago despite the fact that the European Patent Convention, on which the office bases its rules, does not allow computer programmes as such to be patented.

Around 30,000 patents now exist and the Commission decided to clear up the "ambiguous" legal situation and provide a pan-EU patent system to boost competitivity.

The debate since the Commission adopted its proposal in early 2002 hinges on the issue of what can and cannot be patented. Under the Council's common position, only computer-related inventions can be patented - and they must have a 'technical contribution'.

This is clouded in legal uncertainty. The pro-patent lobby argues that it excludes computer programmes or business methods and refers to concrete applications such as mobile phone technology or chip-controlled car brakes. Such a definition, they claim, will create a balance between rewarding inventors for their efforts and the freedom of developers to create software.

A lawyer for the Business Software Alliance (BSA) said: "There is a link between weak patents and the advancement of technology. Europe needs a strong patent system."

Leo Baumann of industry association EICTA said that not just software companies were affected, but other groups like medical equipment makers and automotive firms had also voiced their support.

But opponents argue that the terms have been deliberately left vague so that large producers can patent all kinds of software, like in the US, and use their patents to dominate the market.

"Anything from databases to computer graphics will be patentable," said Florian Mueller of the No Software Patents campaign.

A common example used by anti-software patent campaigners is the use of the 'one click' shopping tool on online bookstore Amazon.com which has been patented in the US. Critics claim this will lead to small companies being forced to pay for basic technology.

But others insist that this technology would never get patent approval over here.

It will be impossible to know who is right until the law is passed and a test case at the European Court of Justice sets a precedent.

The UK Patent Office is anticipating the legislation's entry into force by a series of workshops starting next week (15 March) to try to work out definitions of technical effects.

But Poland, Hungary, Latvia and the Netherlands had already expressed doubts over the proposal, and Denmark and Cyprus tabled extra statements at the last minute, warning that they would support MEPs in making clearer definitions of technical patentability.

Opponents of the directive within the Parliament, still smarting from the Commission's rejection of their request to return to first reading, are even more determined to get their amendments through.

Monica Frassoni, joint leader of the Greens, said that the party would work to "assemble as large a lobby as possible to ensure that the current proposal does not get through the Parliament's second reading in its present form".

But at the same time there is an awareness that, with views sharply divided between the pro-camp in the European People's Party (EPP-ED) and the anti-camp (the Greens and Socialists), it could be difficult to reach the qualified majority needed for any amendments in second reading. Liberal Democrat leader Graham Watson said: "I am by no means certain that there will be a majority in favour of this proposal in second reading."

The Commission is likely to be more sympathetic during second reading. Internal market chief Charlie McCreevy told MEPs on Tuesday (8 March) that if they rejected the directive he would not propose a new one.

After being rubber-stamped by the Council (in the form of Coreper II) the controversial proposed Directive on software patents was to be approved by the European Parliament in a second reading. The Parliament had in vain called for the proposal to be returned to the first reading. The Directive was aimed at both clearing up the 'ambiguous' legal situation concerning patentability of software and providing a pan-EU patent system to boost competitivity.