Brussels, 25/05/2005 (Agence Europe) - A hearing of experts on 23 May enabled the European Parliament legal affairs committee to tackle the very real issue of the draft directive on patenting of computer assisted inventions: software patenting needed be allowed? In his draft report, French Socialist Michel Rocard confirmed his analysis of the first reading according to which European law should allow computer assisted invention patenting but which should exclude patents for pure software. In order to delineate the field of application, Mr Rocard fine-tuned the definition of the “technical area” and introduced the expression “computer controlled inventions”. Although the EP supports his analysis, the rapporteur is convinced that the European Convention on Patents should not be amended. Although he does think “possible” a synthesis of the 256 amendments submitted, Mr Rocard is not ruling out the possibility of conciliation. The EP will proceed to its second reading during July's plenary session.
With the overwhelming deluge of consumer products, including integrated software (cars, mobile phones, washing machines, lifts), Rocard thinks it both normal and desirable that the industry is able to patent the results of its investments to ensure remuneration and to protect itself from counterfeiting. Nonetheless, it strongly insists on the fact that software, as an ensemble of mathematical formulas, is not patentable. How, therefore, can a formulation be found which will allow for deciding what is or is not patentable? Michel Rocard thinks that it is up to the EP to find innovation in this respect.
In order to be patentable, an invention has to be new and unlikely to be used in industrial applications of a technical nature. Having a technical character means belonging to a technical field and having a technical impact, which the rapporteur describes as pure “tautology”. Michel Rocard judges it therefore necessary to put the finishing touches to the notion of “technical domain”. He believes that this notion invokes an “industrial domain for application, which required the use of controlled natural forces for obtaining predictable results in the physical world”. The rapporteur therefore considers that this will restrict patents to computer “controlled” inventions, resulting from the physical world and will exclude immaterial software. He hesitated for a long time before proposing this new idea but he believes this will involve a “more enveloping formulation”. He added that, “we are in the middle of manipulating two universes”, the material and the immaterial and “software is definitely part of the immaterial order” and therefore not patentable. Not all the experts share this opinion. Reto M. Hilty, Director of the Max Planck Institute for Intellectual Property in the field of competition and tax law said that there were “doubts about the possibility of delineation between notions of what is material or immaterial”.
According to Mr Rocard, inventions for patenting will not be computer “implemented” but rather “controlled” by the computer. Polish MEPs Barbara Kudryck and Tadeusz Zwiefka (EPP-ED) preferred to speak about the patenting of computer “aided” inventions, while Monica Frassoni from Italy and the Austrian Eva Lichtenberger (Greens-EFA) spoke about the notion of computer “assisted” inventions. This modification sought by the rapporteur is naturally better at illustrating the fact that software cannot be part of the technical characteristics of patent requirements. Rocard consider that the term “implemented” is clumsy, as it can create the impression that the invention can be totally devised by a computer alone, which would mean software being patentable. The use of the term “controlled” therefore goes in the direction of the idea according to what can be patented, the invention and not the software used. The expert François Pellegrini said that the sense of the word “controlled” is “”very strong”. This senior lecturer in information technology at the “Ecole nationale d'informatique, électronique et radio télécommunications” in Bordeaux said that inventions to protect that belong to the physical world and put into play the forces of the natural world but which are controlled by a software external to it, cannot be patented.
Although the EP has retained the formula “forces of nature” and computer “controlled” inventions, Michel Rocard was persuaded that “the directive does not require any amendments to the Convention of Munich”. Signed in 1973 in Munich, the European Convention on patents does not consider computer programmes “as they are” as patentable inventions. Rocard provided assurances that he “defended the tradition as it was written in 1973”. He admitted that he had needed time to understand this Convention and proposes revising it. He acknowledges that if his position wins out this will mean “making obsolete tens of thousands of patents” delivered a “bit too quickly” by the European Patents Office (EPO). If this is not the case, a new international conference will be necessary with member countries of the EPO, as well as Russia and Norway but this would be “dangerous and difficult to do”. Reto M. Hilty does not share this analysis. He believes that modifications in EPO practices would really require a diplomatic conference.
The draft Rocard report contains two other essential elements involving the processing of information and inter-operability of systems. Michel Rocard considers that innovations in the processing of information do not constitute inventions in the sense of patent law. In the area of inter-operability of systems, he considers it necessary to confirm the rights resulting from Directive 91/250/EC on the legal protection of computer programmes. European law will have to guarantee that when technical patents are uniquely needed for ensuring operability between two systems, this should not be considered as patent counterfeiting. In a press release Eva Lichtenberger stated, “compatibility of components and programmes creased by different manufacturers is of crucial importance” in the interest of consumers and for minimising the risk of certain major manufacturers obtaining a “dominant position”. In connection with probable conciliation on the dossier, Michel Rocard said “four or five Member States are uneasy” with the Council's common position on software patentability. Adopted in May 2004 (EUROPE 8709), this position was not able to be fully ratified until March 2005 following the written declarations of the national delegations. Poland notably posed its conditions for adoption of a directive, which include the exclusion of computer patents (EUROPE 8886).
Proposals provoke different reactions
Philippe Simonnot, Director of the Observatory of Economic Law at the University of Versailles Saint-Quentin-en-Yveline, supports the common position of the Council adopted in May 2004. He considers that “software is by nature, appropriable, therefore patentable…If we think about it in terms of 'property', software can be marketed without it being divulged and should not be confused with an idea”. On the other hand, the Foundation for a Free Information Infrastructure (FFII) “warmly” welcomed the Rocard report in a press statement on its remarkable “clarity” with which it delineates the field of application for what is or is not patentable.