Brussels, 10/02/2005 (Agence Europe) - In a letter to the Council dated 8 January, Poland has made any progress in further legislative proceedings on the directive on the patentability of inventions developed using computers conditional upon a clear exclusion of software from the scope of the future legislative act. The country has twice blocked the formal adoption of the political agreement reached by the Competitiveness Council in May 2004 (see EUROPE of 19 May 2004). Poland informs the Member States that it “will support the proposed directive at second reading in the Council only if introduced amendments prohibit the patenting of computer programs”.
The letter, of which EUROPE has obtained a copy, supports the general objectives of the directive, particularly improved transparency and legal security and the harmonisation of the various practices of the Member States in this field. Poland, however, indicates that “several key provisions” included in the Council's political agreement “do not meet Poland's expectations”. It says that it is “determined” to promote the adoption of “unequivocal legal instruments guaranteeing that computer-implemented inventions will be patentable but a computer program or its fragment will not- beyond any doubt”. It feels that it is advisable to explain that “computer-implemented inventions should be protected only when limited to products such as programmed technical equipment or a technical operation executed with this equipment”.
Poland lists the reasons why in its current form, the proposed directive does not answer its will to avoid all patentability of software. In particular, it refers to a legal uncertainty due to the contradiction between articles 4 and 5.2 of the proposed directive. This is an “inadmissibly broad interpretation” of the TRIPS (trade-related aspects of intellectual property rights) agreement under the WTO and contradicts “article 52 of the Convention of the Grant of European Patents, according to which computer programs as such are not considered as inventions”. Furthermore, this proposal “recognises simple use of a computer as 'technical'”, which also contradicts the essence of the European Constitution and Polish legislation. Lastly, it lacks “a clear statement” to the effect that “the programming of computers, computer networks or other devices is not a field of technology”.
In its letter to the Member States, Poland proposes that future work on the proposed directive be supplemented by a document including “examples of inventions that will enjoy patentability and those that will not”. These examples will be “an interpretation aid for rulings on the patentability of computer-implemented inventions”. In the same way, Poland feels that a “preliminary assessment of possible legal and financial consequences” caused by the implementation of the directive should be included.