Directive on the patentability of computer-implemented inventions
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The proposed European Union Directive on the patentability of computer-implemented inventions (2002/0047/COD) has become a major arena for policy conflicts over the granting of patents over computer-implemented inventions, software and business methods.
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History
Original draft directive
The directive was initially proposed by the European Commission as a way to codify and "harmonise" the different EU national patent laws and cement the practice of the European Patent Office of granting patents for computer-implemented inventions provided they meet certain criteria (cf. software patents under the European Patent Convention). The directive also took on the role of excluding "business methods" from patentability (in contrast with the situation under US law), because business methods as such are not patentable under the different European national patent laws and under the European Patent Convention.
However, opponents of the original directive claim that it is a thinly disguised attempt to make all software patentable. This is largely through the use of the vaguely defined phrase "technical effect". Without this directive it is unclear whether the many software patents granted by the EPO would be enforceable (apparently none would have been successfully enforced yet).
Transformation by the European Parliament
In September 2003, the European Parliament eventually passed the directive, in a heavily amended form [1] (http://swpat.ffii.org/papers/europarl0309/index.en.html), which would place significant limits on the patentability of software. The most significant changes included: a definition of the "technicity" requirement for patentability which distinguishes between abstract information-processing processes and specific kinds of physical processes (only the latter are "technical"); and a blanket rule that patents cannot be used to prevent interoperability between computer systems. An advocate of the patentability of computer-implemented inventions, however, stated a concern that the Parliament's wording might extend the ban on software patents to inventions potentially implementable in software, such as signal processing equipment ([2] (http://216.92.57.242/patentepi/data/040901SoftPat-10-FINAL.pdf), pages 8, 15).
Politically, these amendments were supported almost unanimously by small parties on both the right and left, while the larger groupings (social democrats, liberals and conservatives) were all split, with the balance of social democrats leaning in favour of amendment, and conservatives leaning against.
The Parliament's amendments were a major defeat for the directive's original proponents. Rather than being a confirmation of the practice of granting software patents, the directive had placed real and substantial limits on patentability.
Reversion by the Council of Ministers
Under the codecision procedure, both the European Parliament and the Council of Ministers (representing national Governments) must agree a text in identical terms in order for a proposal to become law. On 18 May 2004, the Council agreed in an advisory vote to resubmit to Parliament what was described as a 'compromise version' of the proposal. The agreed version would permit patenting of computer-implemented inventions (providing the inventions have a "technical character"), and would overturn most of the Parliament's amendments. Critics of the proposal argue that the "technical character" requirement is interpreted so loosely as to allow almost unlimited patentability of software.
The Council formally approved this resolution on March 7 2005 [3] (http://news.bbc.co.uk/1/hi/technology/4325215.stm). The revised proposal is to be resubmitted to Parliament, which will only be able to overturn it by an absolute majority of members (rather than a majority of members present and voting).
It has been argued that the Council of Ministers and its advisors in this instance are generally 'pro-patent', and more strongly influenced by the concerns of business organisations than by the views of constituents and the MEPs they have elected.
For instance, the Council in this case is composed of the Competitiveness Ministers from each of the Member States. The deciding Ministers themselves appear to be advised by those with strong connection to the juridical world, which benefits from software patent litigation.
Furthermore, the Committee of Permanent Representatives which assists and advises the Council is comprised of civil servants from national ministries of governments rather than elected parliamentarians. Furthermore, the members of the patent working group that works on a common position which the national ministries can adopt are civil servants from the national patent offices and other pro-patent people.
In summary, it is widely claimed that the Council is less aware of the concerns of those who advocate limits on patentability, such as academics, individual developers, and small to medium software developer companies. It appears to be fairly isolated from (national) individual constituencies, and more closely attuned to the concerns of organisations such as the Business Software Alliance (BSA).
Letter-writing campaigns by opponents of the directive, coalition building, and reinforcement of the scholarly case against unlimited patentability all appear to have failed to "trickle up" through national parliamentarians to the Council.
Developments between First Parliament Decision and Council Decision
In an unprecedented move, the Dutch national parliament passed a motion (http://www.theinquirer.net/?article=16984) requesting that the nation's ministerial representative on the Council, Laurens Jan Brinkhorst, change his vote on the Council's version of the directive, from "in favour" to abstention. Brinkhorst had stated that he will not do this.
The council's confirmation (or otherwise) of the President's "compromise" had also been delayed. [4] (http://europa.eu.int/ida/en/document/3378/194/council)
The Polish government announced on November 16, 2004, that it could not "support the text that was agreed upon by the EU Council on 18 May 2004 [5] (http://www.euractiv.com/Article?tcmuri=tcm:29-132419-16&type=News). A joint press-release (http://swpat.ffii.org/news/04/cons1117/index.en.html) by the FFII, the Internet Society Poland, and NoSoftwarePatents.com, supported the concerns of opponents of the Council directive, stating:
- "at a meeting hosted by the Polish government on the 5th of this month, everyone including representatives of the Polish Patent Office, SUN, Novell, Hewlett-Packard and Microsoft, as well as various patent lawyers, confirmed that the present proposal of the EU Council does make all software potentially patentable."
On 7 December 2004, the Belgian Minister of Economic Affairs, Marc Verwilghen, stated that no Council decision would be taken until 2005 "for the reason that the qualified majority does not exist anymore". However, amid rumors of a change in the Polish position, the 13-15 December meeting [6] (http://register.consilium.eu.int/pdf/en/04/st15/st15967.en04.pdf) of the Council's Committee of Permanent Representatives determined that a qualified majority appeared to exist, and that the Council's revised version of the directive would be scheduled for formal adoption by the Council, without further debate, probably at the Agricultures and Fisheries Council meeting on the 21st and 22 December 2004.
Statements expressing reservations were attached to this Common Position by:
- Belgium (which abstained);
- France (which hoped for further changes to the directive);
- the Netherlands (where the parliament requested their representative vote against);
- Poland (which was opposed until recent diplomatic pressure);
- Hungary;
- and Latvia.
Germany has been ambivalent, saying that the text of the directive could benefit from improvements.
Due to the expressed reservations and especially to opposition from Poland, whose Minister of Science and Information Technology made a special journey to Brussels to demand that the directive be dropped from the agenda, the Council's vote was postponed "indefinitely".
Meanwhile, a group of 61 MEPs, from 13 countries, tabled a "motion for a resolution" to restart the entire legislative process. On 2 February 2005, JURI, the Legal Affairs Committee of the European Parliament, voted 19-1 in favour of asking the Commission to withdraw the directive and restart the process.
The next day, Nicolas Schmit, deputy foreign minister of Luxembourg (which currently chairs the Council of Ministers), said that he would instead ask the Council to formally adopt the draft directive at a meeting on 17 February. Although Poland stated it would only oppose this if other countries raised an objection, reports of opposition from Denmark, the Netherlands and Spain ensured that the common position was not on the agenda for that meeting of the Commission.
On 17 February, Parliament's Conference of Presidents (the President of the Parliament and the leaders of the political groups) approved JURI's request to restart the process, and agreed to pass the request to the European Commission. On 24 February, a plenary session of the European Parliament reinforced this message, inviting the Commission to reconsider, but on 28 February the Commission refused the parliament's request.
The "common position" reappeared on the agenda of the Council's 7 March meeting as an "A-item" for adoption without discussion. At the Competitiveness meeting of the Council, Denmark requested that this be removed. The President of the Council, seemingly in breach of the Council's procedures, opposed this, "for administrative reasons" and because it would defeat the logic of the directive. The Danish representative accepted this at face value, declined to object formally, and entered Denmark's objections into the record. The common position was thus adopted without debate, and referred to the European Parliament for a second reading, with dissenting statements and caveats from a number of countries. In the event, only Spain had actually voted against: Austria, Belgium and Italy abstained (which has the same effect as voting against, given the way Qualified Majority Voting works).
Second reading in Parliament
In June 2005, the legal affairs committee of the European Parliament discussed the directive and rejected plans for a complete overhaul of the directive [7] (http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+PRESS+NR-20050621-1+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=X&LSTDOC=N#SECTION1). The vote by the committee took place on 21 June 2005, and narrowly decided not to substantially amend the Council version of the directive. According to the Financial Times, this "(...) vote marks a turning point in the protracted battle over the law, which has split the software industry and sparked severe recriminations." [8] (http://news.ft.com/cms/s/329cb864-e1bb-11d9-9460-00000e2511c8.html).
Current status
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The committee's report will pass to a plenary session of Parliament for debate by all MEPs, scheduled for 6 July.
Under the codecision procedure, Parliament has the power to amend the directive or reject it outright, but since this would involve changing the agreed position of the Council, it requires an absolute majority of MEPs (not just a majority of those present in the chamber at the time).
- If Parliament rejects the proposal outright, it will fall.
- If Parliament once again amends the proposal, the amended version will be sent back to the Council for a second reading.
- If Parliament neither rejects nor amends the proposal, it will enter into law as an EU Directive. Member countries will then be obliged by treaty to implement the directive in their domestic law.
See also: Codecision procedure
Reactions
Supporters of the proposal
Supporters of the proposed directive include Microsoft, IBM, Hewlett-Packard and the European Patent Office.
The European Information and Communication Technology Association (EICTA) has warned that "thousands of jobs and inventions were at risk because of opposition from the European parliament to a draft EU directive giving patent protection to scores of new products" [9] (http://www.guardian.co.uk/business/story/0,3604,1351216,00.html). EICTA's position has in turn been characterised by opponents of software patents as "dominated by patent lawyers from the patent arms of large corporate members" [10] (http://swpat.ffii.org/players/eicta/index.en.html), "most of which qualifying as non European companies" [11] (http://wiki.ael.be/index.php/AgoriaRepresentativity) and "with a patent policy (...) tailored to the special interests of a few large corporations (...)" [12] (http://www.nosoftwarepatents.com/en/m/politics/organizations.html).
Opponents of the proposal
The proposed directive has catalyzed a campaign by diverse opponents of software patents, who took the opportunity afforded by the introduction of this harmonization directive to argue that software patents are neither economically desirable nor mandated by international law. The FFII and the EuroLinux Alliance played key roles in coordinating this lobbying campaign, which drew support from some free software and open source programmers, some academics, some small business groups, and some commercial software developers. Many of these constituencies expressed concern over what they saw as abuses of the software patent system in the USA, and argued that although some software patents might be beneficial, the net effect of the Commission's proposals would be to suppress innovation and dampen legitimate competition. The campaign in its turn was characterised by advocates of software patents as "a small but highly organised and vocal lobby" [13] (http://www.out-law.com/php/page.php?page_id=softwarepatentsin1092939670&area=news), although the opposition to the Directive expressed by the parliaments of a number of member states suggests that the opposition is more widespread.
Figures who have supported the campaign against software patents in Europe include Tim Berners-Lee, the inventor of the World Wide Web and Linus Torvalds, the inventor of Linux.
On 16 February 2005, the European Parliament's Directorate General for Economic and Scientific Policy issued a briefing paper (http://www.ffii.org/~jmaebe/epecosci0502/SoftwarePatent.pdf) (and summary (http://www.ffii.org/~jmaebe/epecosci0502/SoftwareHandout.pdf)) which concluded that a directive is needed both to harmonise the laws of the member states and to enable Europe to compete, but which also stated that "if we adopt the current proposal, it will create the same broad and ambiguous system that is in place in America".
Apart from the issue itself, the legislative process for this directive has also generated serious concern about the balance of power between the European Commission and the European Parliament. It also raises concern about the balance between the Council (of member state governments) and Parliament (of elected members from member states). When the Commission rejected Parliament's request to restart discussion on the directive, this led to debates over how much power the Commission should have compared to Parliament and member states. Some MEPs believe that the affair is part of a power struggle between the two bodies, and describe it as an abuse of the system. Others believe that the real debate is more about whether the Council should be able to overrule Parliament, or vice versa.
Software Patents and International Treaties
Whether international law mandates software patents is a controversial question. The World Trade Organisation's TRIPS Agreement includes a requirement that:
- "(...) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application" (Art. 27(1)).
The only avenue open for completely avoiding a requirement that algorithms be patentable is to define them as not being "inventions" (eg Art 1(2) UK Patents Act (http://www.jenkins-ip.com/patlaw/pa77.htm#s1)); or/and to define them as being non-technical and thus not in a "field of technology". This distinction is arbitrary but also self-consistent, in that it makes perfect sense to distinguish between "technical" processes and devices (i.e. those tied to the physical world) and informational or mathematical processes which have no necessary connection to physics. Because the "field of technology" requirement in TRIPs had its origins in European patent laws, Europe is, in legal terms, free to take steps to define the concept in either a broad or narrow way.
In fact, some people argue (http://beauprez.net/softpat/summary.html) that the principle of software patents breaches those very international treaties which impose them according to others.
See also
- Community Patent
- Strasbourg Convention (1963)
- Directive on the patentability of biotechnological inventions
- Directive on the enforcement of intellectual property rights
- Institutions of the European Union
- Software patent
- Software patents under the European Patent Convention
External links
- European Commission's page on the Patentability of computer-implemented inventions (http://europa.eu.int/comm/internal_market/en/indprop/comp/index.htm)
- FAQ about the directive (http://www.patent.gov.uk/about/ippd/faq/softpat.htm), on the UK Patent Office site
- Top reasons why no software patents (http://wiki.ael.be/index.php/TopReasonsWhyNoEpatents)
- History of the Directive proposal from FSF Europe Chapter Italy (http://www.italy.fsfeurope.org/projects/swpat/swpat.en.html)
- opposes software patents (http://www.softwarepatents.co.uk/)
- opposes software patents (http://www.nosoftwarepatents.com/)
- The Proper Balance of Competition and Patent Law and Policy (PDF) (http://www.ftc.gov/os/2003/10/innovationrpt.pdf), (Federal Trade Commission)
- A Study of Copyright and patent law interactions (http://www.codeliberty.org/defence.html)
Studies and working papers
- The patentability of computer programmes: Discussion of European-level legislation in the field of patents for software (PDF) (http://www.europarl.eu.int/meetdocs/committees/juri/20020619/SoftwarePatent.pub.pdf), working paper of the European Parliament's Directorate-General for Research
- Enforcing small firms' patent rights (PDF) (ftp://ftp.cordis.lu/pub/innovation-policy/studies/studies_enforcing_firms_patent_rights.pdf) A study funded by the European Commission, Enterprise Directorate-General