Idea Of EU Directive

The legislative process on an EU software patent directive has been going on for several years. It is now in the decisive stage where a final decision may (or may not) be made within months.

The far-fetched interpretation of the European Patent Convention by the European Patent Office resulted in major discrepancies between national jurisdictions. Those who tried to enforce software patents that the EPO had granted could not do so on a dependable basis. In some countries, judges tended to not recognize those patents, and in others, they were more inclined to do so. There is even some inconsistency between how courts within the same country, or different judges at the same court, ruled on attempts to enforce such software patents.

The EU Commission decided that it was time to have EU-wide uniformity with respect to software patents, but its initiative is about much more than that. It's certainly correct to say that a single market such as the EU should have a maximum level of consistency for everything related to commerce. There should not be a fundamental difference between the enforceability of the very same patent in, for instance, the UK versus Italy. However, the Internal Market Commissioner who took the initiative (Frits Bolkestein) set out goals beyond that. He also wanted to effectively extend the scope of patentability.

An EU directive on software patents can only have an indirect effect on the European Patent Office. The EPO is not an EU institution, and it is therefore not formally bound to any EU legislation. It is governed by the European Patent Convention of 1973, which is a separate multi-national treaty to which non-EU countries such as Switzerland are also members. However, there is a huge overlap between the member countries of the EU and those of the European Patent Convention. Practically, the overlap between both memberships is well over 90% of the market opportunity. Therefore, if the EPO granted patents that are not recognized in EU member states, it would end up having many unhappy customers that don't get much practical value out of such patents.

Click here to read about the co-decision procedure of the EU