The European Directive on software patents was voted through last night by the slimmest of margins. Crucially, Germany switched its position at the last moment and voted to support the directive, despite its previous vehement opposition.
In the expanded EU, 37 votes (up from 26) must be recorded against an item for it to be blocked. At the meeting in Brussels yesterday, 30 votes were counted against the bill. Germany, with ten votes at its disposal, effectively had the final say. Newsletter
So what was behind the sudden change? Germany had very specific objections to the wording of the text, as it emerged from the Council of Minsters meeting last week. It wanted clarification on what should, and should not count as technical.
The article in question, article 2b, reads as follows: 2b. A technical contribution means a contribution to the state of the art in a field of technology which is not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features.
Germany wanted to strengthen this definition to exclude patents on the mere handling, processing and presentation of information, and to require technical features to predominate. However, once the text was amended to say that the contribution be new, as well as not obvious, Germany dropped its opposition and voted to pass the directive.
Changes were also made to Article 4, which deals with conditions for patentability, and what consitutes an inventive step.
Spain voted against the directive and Belgium, Italy, Denmark and Austria all refused to support it. In previous negationations, Poland, Austria, Latvia and Germany had all expressed reservations. There were even indications that France might oppose it, but its final position was that the current situation was too uncertain to continue, and that some legislation would be better than none. [...]"
So, the various reports were indeed true saying that the German Government had intended to support some of the interests of the clientele of the FFII.
Not quite surprisingly, the EU Commission welcomed the Council agreement on Directive on computer-implemented inventions:
"[...] The European Commission has welcomed the Competitiveness Council's political agreement on a 'common position' on the proposed Directive on computer-implemented inventions. The proposed Directive aims to boost innovation by ensuring that those who invest in developing genuinely new products that depend on computer implemented technology can, like those who develop other products, get a fair reward. It would achieve this without sealing off the software market to new initiatives and new inventions. The Commission supports the text adopted by Council, which it believes restores the overall balance between the interests of the rights holders and other parties (competitors and consumers) struck by the original Commission proposal presented in February 2002 (see IP/02/277, MEMO/02/32). However, there are still differences between the positions of the Council and European Parliament and, under the procedure known as 'co-decision', both institutions must agree before the measure can become EU law. Once the Council has formally adopted the 'common position' without discussion at a forthcoming meeting, the text will be transmitted to the Parliament to begin its second reading after it has reconvened in September following the June 2004 elections.
Internal Market Commissioner Frits Bolkestein said: "The Council's agreement is a big step towards getting this Directive adopted in a form which will provide a major contribution to European competitiveness and assist the proper functioning of the Internal Market. We must reward investment in innovation if a real knowledge-based economy is to flourish in Europe. It is nothing more than basic common sense to make sure that inventions are not excluded from patent protection simply because they use computer software. But the Commission has always been committed to making sure that patents in this field, as in any other, cannot be used to squeeze out legitimate competition or to prevent others getting fair access to technology and ideas. This text achieves that balance and I very much hope the new European Parliament will be able to adopt it swiftly."
The proposed Directive seeks to harmonise the way in which national patent laws deal with computer-implemented inventions. Such inventions can already be patented by applying to either the European Patent Office (EPO) or the national patent offices of the Member States. However enforcement of patents is dealt with by national courts and, as the law may differ between Member States, the level of protection may, in practice, vary. This can represent a significant barrier to trade in patented products within the Internal Market.
The balance of the Commission's original proposal is maintained in the text adopted by the Council. This is to provide legal clarity while avoiding any drift towards patents for business methods or computer programs which do not provide any technical contribution to the state of the art.
The text adopted by Council includes twenty one amendments proposed by the European Parliament at its first reading but there remain some important differences between the two institutions' positions. These differences mainly relate to exceptions from patentability for computer-implemented inventions. The Parliament wanted wide exclusions covering the use of patented technology for interoperability and data handling. However, the Commission and Council felt that these went beyond what was required to set the right balance between rewarding inventors for their efforts and allowing competitors to build on these inventions, and could ultimately harm EU competitiveness. [...]"
We'll wait and see in order to watch the coming moves of all the stakeholders in view of the position of the European Parliament ...
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
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