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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, September 24, 2003Plenary Vote of the European Parliament: An earthquake in the patent landscape.In principle, the Official results of today's plenary vote of the European Parliament are available to everyone equipped with an Internet access: The "Minutes of proceedings - Result of roll-call votes - Annex 2" have been put into the web. The lists of various amendments on which the voting was based are also available on-line (A5-0232/2003: amendments, A5-0299/2003: amendments, A5-0259/2003: amendments, A5-0238/2003: amendments, A5-0302/2003: amendments, A5-0306/2003: amendments).
The tedious task of producing an Official consolidated version has, of course, not been completed yet, and only with some caution it is possible to asses the facts that have been set by the European Parliament. However, it nevertheless seems to be quite clear that many MEPs have made some of the positions lobbied for by FFII e.V. to their own. For example, Article 4, paragraph 3a has been inserted into the Directive stating "In determining whether a given computer-implemented invention makes a technical contribution, the following test shall be used: whether it constitutes a new teaching on cause-effect relations in the use of controllable forces of natures and has an industrial application in the strict sense of the expression, in terms of both method and result." Article 5, paragraph 1 a of the Directive now requires that "Member States shall ensure that patent claims granted in respect of computer-implemented inventions include only the technical contribution which justifies the patent claim. A patent claim to a computer program, either on its own or on a carrier, shall not be allowed."
The much debated new Article 6a of the Directive now says: "Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement." The above-mentioned findings are, of course, merely of a provisional nature until an Official consolidated version of the Directive is published. It can hardly be assumed that the Council will be inclined to approve the result of today's voting of the European Parliament within the working context of the Codecision Procedure without further changes in a second reading, in particular in view of TRIPS. It would not be very surprising if another political row would emerge out of the present situation because of the majority of MEPs who today have voted in favour of the FFII-inspired amendments most probably will not be pleased if they see their results rebuked by the Council. Perhaps a way out might then be considered in simply dropping the Directive and seeking to muddle through on the basis of the national law or, as already hinted by Mr. Bolkestein, trying to solve the problem by means of an agreement outside the context of the EU lawmaking process.
In view of this case Mr. Pilch, president and "spiritus rector" of FFII e.V., has already announced in a public mailing list that if the Directive is set to be abolished by the Council or by the Commission, FFII e.V. would lobby in favour of the amended Directive: "The Directive now is our project", he wrote, "the roles have swapped".
The users of the patent system have just suffered a severe political defeat, even if the Council manages to rectify the current situation. This was probably the very first time since the patent disputes of the nineteenth century that patent law was in the headlines. The controversy on patents will continue, that is for sure.
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