MEPs adopt resolution on patenting computer implemented inventions
MEPs voted in favour of a legislative resolution on the patenting of computer implemented inventions on 24 September. The vote followed months of intensive debate and lobbying, which several MEPs claimed had been the most aggressive they had ever experienced. Opening a debate on 23 September, EU Internal Market Commissioner Frits Bolkestein said that campaigning against the directive had been based on half-truths and misconceptions. 'The aim of this directive is neither to abolish nor to extend the patentability of pure computer programs, but it is to firstly clarify the scope of patentability and to harmonise on the base of existing practices,' he said. 'Nothing would become patentable which is not already covered by existing patent law,' the Commissioner emphasised. The directive refers to computer implemented inventions, which are described as 'any invention in the sense of the European Patent Convention, the performance of which involves the use of a computer, computer network or other programmable apparatus, and having in its implementations one or more non-technical features which are realised wholly or partly by a computer program or computer programs, besides the technical features that any invention must contribute.' MEPs insisted on an amendment outlining areas to be excluded from the directive. A computer implemented invention should not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus, agreed MEPs. Accordingly, inventions involving computer programs that implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interaction between a program and a computer, network or other programmable apparatus should not be patentable, according to the Parliament. Attempting to alleviate additional concerns, MEPs called on Member States to ensure that when the use of a patented technique is needed for a specific purpose (for example the conversion of conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them), use should not be considered as a patent infringement. Speaking prior to the vote, Spanish MEP Medina Ortega underlined that the directive is not about patenting software, and emphasised that legislation is necessary in order to halt the trend towards the issuing of too many patents and too much protection, which have damaging consequences for research and development. The necessity of action was also highlighted by Irish MEP Proinsias de Rossa, who said that 'doing nothing is unacceptable' as legal certainty is essential for the information technology (IT) industry. Opponents of the directive have argued that the proposed legislation will result in an end to innovation by smaller enterprises, as creating new programs would infringe on the patent rights of larger companies and lead to higher costs. However, the assurances given by the Parliament and the Commission have been echoed by some in industry. 'The reality is that the directive is essentially little more than tweaking, designed to clarify a currently unclear legal position,' said UK IT expert Alex Batteson on 24 September. 'Specifically the directive explains what software currently can and cannot be protected by a patent in Europe. The irony is that in doing this, the directive may actually benefit small software developers.' Elaborating on this idea, Mr Batteson explained that it will be clearer to smaller companies what software that they develop may be worth patenting. 'This should act as an incentive rather than leave all their ideas unprotected.' This is however unlikely to signify the end of the debate as several amendments adopted by the Parliament were beforehand described as 'unacceptable to the Commission'.