Brussels, 20/02/2002 (Agence Europe) - On Wednesday, the European Commission adopted a proposal of directive on the patentability of computer software, which has been under preparation since 1997. Seeking a balance between the protection of innovations and free competition on the flourishing software market (EUR 39 billion in 1998), the proposal satisfies neither the major software production companies such as Microsoft, which would have liked a more extended patent, nor their adversaries who defend free access to software, along the lines of the Linux system. The Member States should give their first reactions during the Internal Market Council on 1 March, before an in-depth debate probably in May.
The directive provides for "inventions implemented by computer" to be patented when they represent a "technical contribution". In vague terms, the text adds that this "technical contribution" is a contribution that "is not obvious for anyone in the profession ", and specifies that the inventions claimed must be directly linked to the computer. At the same time, Article 6 of the text allows for a derogation, in so far as the operations linked to the interoperability of programmes, protected by the 1991 directive on the protection of copyright for computer programmes, are not affected by the new directive on patents.
For the Commissioner for the Internal Market, Frits Bolkestein, the directive "meets the expectations of Member States" which wanted to lift the obstacles to the marketing of software on the internal market. The aim is to put an end to the difference in interpretation of case law, which has essentially been developed by the European Patents Office in Munich, the United Kingdom and Germany. "Our goal is to standardise the approach and for a valid patent in one Member State to be recognised in another," said the Commissioner. "Nothing will be patentable that is not today" he assured, stipulating, however, that the proposal is "more restrictive than the current case law of the Patents Office", in the sense that is does not allow for the "patentability of software as such". According to the proposal, "computer programmes as such will not be patented, nor business methods based on exiting technological ideas", the Commission note stipulates.
Mixing chalk with cheese, the proposal pleases nobody. For Fancisco Mingorance, representative of the Business System Alliance (BSA) which defends the interests, among others, of IBM and Microsoft against copies and counterfeiting, the Commission's proposal is "disappointing as it does not follow the practice of the European Patents Office and those in force in Germany and the United Kingdom on the protection of software itself". It is also "worrying as it allows for exceptions through Article 6, which does not protect an invention once the formula having the same effect is different". "The Commission is going against its goals by creating expensive and lengthy procedures", he says.
Jean-Paul Smet, Vice-President of Eurolinux (an association of freeware companies) takes the Commission's document as meaning the opposite, claiming that the directive legalises the European Patent Office's practices; making it possible to patent any innovation that has a technical effect. Eurolinux argues that the Commission document puts software in the technical domain (therefore covered by the Patent) when it should be part of culture and therefore in the intellectual property domain. Mr Smet feels that the Commission demonstrated bad faith with its claim that the proposal will not impact on the software economy.
As far as Commissioner Bolkestein is concerned, however, the proposal strikes a balance between the sometimes contradictory positions of US practice (more radical in terms of patenting software) and the defenders of freeware like Linux. He said that Linux's free access approach was pleasant but did not give inventors sufficient protection. The Commissioner did not rule out doing battle with the US, which uses a broader definition of technical innovation and therefore grants stricter patents to software. Mr Bolkestein told journalists that the EU's position differs from the US position, but the Commission had carried out its own analysis and was prepared to listen to any complaints the US might formulate. He did not challenge the fact that the financial weight of big US companies would enable them to buy the lion's share of patents granted in the EU, noting that patents can be bought and sold, and that if a patent holder decided to sell their patent to Microsoft, he didn't see how he could prevent them.