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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, September 24, 2003Directive on patentability of computer-implemented inventions passes European Parliament.There are reports on Slashdot according to which the Directive has passed the European Parliament but, however, apparently with an awful lot of amendments inspired by Eurolinux, in particular by FFII e.V.. The full picture of all details will become available probably by tomorrow.
The minutes of yesterday's debate in the House are available online. Well before the vote took place, Commissioner Mr. Fritz Bolkestein had said: "Unfortunately, I cannot be as positive about most of the amendments which have been tabled to the McCarthy Report and which have to be considered here today. The problem with many such measures is that even if they were considered to be worth looking at, they all share one thing in common: they introduce a special regime for computer-related inventions. In patent law and practice it is a fundamental principle that inventions ought to be assessed in a neutral manner with regard to the type of technology on which they rely. The patent examiner will of course examine each individual invention for its inventive element, but he or she has no preconceptions that an invention that uses a certain type of technology is per se innovative or not. This principle is in fact enshrined in international law, in particular the TRIPS agreement, where it is stated that patents shall be available in all fields of technology and patent rights enjoyable without discrimination on that basis. There are some amendments which pose less of a problem for the Commission and we might therefore accept them. I am thinking especially of certain of the amendments directed at the report which the Commission must prepare on the operation of this directive, although I should emphasise that the Commission is not prepared to accept that, in this respect, 'Anything Goes'. Anything which imposes unreasonable demands, given the limited resources at the Commission's disposal, could not meet with our approval. The need to remain within the scope of the directive should also be borne in mind. Some of the amendments proposed are too broad in their effects. That said, I shall make a few brief remarks. Firstly to Mr Rocard, who said that the proposal does not guarantee that there will be no software patenting as such. The proposal lays down a specific hurdle that must be cleared before any invention can be patented. The invention must make a non-obvious technical contribution: this guarantees that non-technical software will never be patented but genuine technical inventions will get the protection they deserve. I also say this to Mr MacCormick who asked me to ensure the directive is watertight against leakage. This requirement of the technical contribution does so. I hope this will satisfy Mr De Clercq. My second specific remark is addressed to Mrs Echerer, who said that if a small part of a problem is patentable then the whole problem is patentable. Patents are about solutions to technical problems and a patent has to cover the whole, not just a small part, of the solution to a problem. It is only infringed if the whole solution is used. It does not, therefore, monopolise every separate component part which contributes to the solution. On the matter of SMEs, which many Members mentioned: in so far as SMEs are users of patents, I wish to stress that nothing becomes patentable that is not patentable now. In so far as SMEs may be inventors of software, they also need to be protected and would get the protection they deserve under the directive. I say this to Mr Oreja and Mrs Thyssen in particular. Let me echo the words of Mr Wuermeling who said: 'whoever opposes this directive must know that the present practice will be continued.' Therefore, if you do not want the present practice to continue, please vote in favour of this directive."
When winding up the debate, Ms. Arlene McCarthy MEP had concluded: "Mr President, I did not want to make this point during my speech, but it is necessary that it should be made. In the ten years that I have been an MEP I have never encountered such a personal, aggressive and abusive campaign as I have with this particular directive. I have been bullied and harassed by lobbyists. My staff have been bullied to the extent that one of them had to take days off with a stress-related illness. "
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