Lainsäädännön ehdotukset

In the usual back-and-forth between the EU institutions, there have so far been three different drafts of a software patent directive. The first and the third of those would allow software patents, while the second would not.

On 20 February 2002, the EU Commission presented its original proposal, which would legalize software patents in the EU. At first sight, that proposal for a "directive on the patentability of computer-implemented inventions" looked it would only allow patents on software-controlled technical inventions but not on general-purpose software solutions. However, upon closer reading, it became clear that "computer-implemented inventions" was just a euphemistic word for "software solutions", and the term "technical" was used so as to deliberately include the work of programmers (rather than just that of engineers in applied natural sciences). The text merely codified current doctrines of the European Patent Office, which in substance allow unlimited patentability of software and business methods like in the USA, while maintaining an apperance of conformity to European law.

On 24 September 2003, the European Parliament passed a variety of amendments that, with respect to software patents, turned the original EU Commission proposal around by 180 degrees. The fundamental difference is that the European Parliament decided to define very clearly what a "technical" invention in the sense of patent law is, and what it is not. For instance, the processing of data was explicitly excluded from the definition of "technical", while the control of natural forces was established as a requirement for patentability.

That proposal by the European Parliament does not mean that technical inventions would become patentable just because they involve software. It just limits the scope of patentability to those software concepts that have a significant effect in the real world. So the European Patent Office couldn't continue to say that a progress bar has a "technical effect" due to making more efficient use of a computer screen. A virtual shopping trolley could not be considered technical only because there is some communication between a few computers. However, a computer-controlled car brake would still be patentable as long as it imparts new knowledge about how forces of nature can work in car brakes, rather than just new knowledge about how to write a computer program. And the software in a car brake would always be protected by copyright law.

The European Parliament had actually proposed a very well-defined compromise. The makers and users of standard computer software would be safe from patent infringement assertions. A programmer who writes a program would know that whatever he writes himself does belong to him. Nevertheless, truly technical inventions would remain patentable as far as the control of natural forces is concerned.

On 18 May 2004, the EU Council announced a "political agreement" on another version of the directive, which is very similar to the one by the EU Commission and does not reflect the will of the European Parliament. In fact, the EU Council went even further than the EU Commission with respect to so-called program claims. The software patent workgroup of the EU Council mostly consists of people who are part of the patent system, so it is little surprise that they pushed for an extension and not a limitation of patentability. The political agreement on 18 May 2004 was not yet a formal adoption of that proposal by the EU Council. There was no formal vote on 18 May 2004. Also, even if the EU Council adopted that proposal, it would still not take effect but it would go back to the EU Parliament.

If you are interested in reading more details about the various legislative proposals and their legal meaning, we have a recommendation. The software patent critics of the FFII (Foundation for a Free Information Infrastructure) have produced various texts that discuss the specific issues concerning those legislative proposals.

Click here to read about the role of various EU member states in the legislative process