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.
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 (certainly none have been successfully enforced).
Transformation by the European Parliament
In September 2003, the European Parliament eventually passed the directive, in a heavily amended form [1], 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 software patents, 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], 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, the Council of the European Union (or Council of Ministers of the national Governments) could have withdrawn the proposal, or sent it back to the Parliament, possibly in a modified form. In the event, on 18 May 2004, the Council agreed in an advisory vote to resubmit what was described as a compromise version of the proposal. The agreed version permitted patenting of computer-implemented inventions (providing the inventions have a "technical character"), and overturned most of the Parliament's amendments. Critics of the proposal point out that the "technical character" requirement is interpreted so loosely as to allow almost unlimited patentability of software.
The Council formally approved this resolution on 7 March 2005. The revised proposal will be resubmitted to the Parliament, which will only be able to overturn it by an absolute majority of members (rather than a majority of members present and voting).
Analysis of the Council of Ministers
In this matter, the Council of Ministers is composed of the Competitiveness Ministers from each of the Member States. 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. Finally, the deciding Ministers themselves appear to be advised by those with strong connection to the juridical world, which benefits from software patent litigation.
This means the Council is less aware of the concerns of those (such as academics, and individual and small to medium software developers) who advocate limits on patentability. It appears to be fairly isolated from (national) individual constituencies. It would appear that Governments tend to be more attuned to the concerns of organisations such as the Business Software Alliance (BSA), than those of the Parliament or constituents.
Letter writing campaigns, coalition building and reinforcement of the scholarly case against unlimited patentability, 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 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. [3]
The Polish government announced on November 16, 2004, that it could not "support the text that was agreed upon by the EU Council on May 18, 2004" [4]. A joint press-release 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 [5] 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 22nd 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 until recent diplomatic pressure was opposed), 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 the Conference of Presidents (the President of the Parliament and the chairmen 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 European 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 given the way Qualified Majority Voting works has the same effect as voting against).
Current Status
Now that the Commission has decided on its version, the draft directive will receive a second reading in the Parliament, where every amendment or an out-right rejection would require an absolute majority. If neither rejected nor amended, it would eventually become an EU Directive, which the EU member states have bound themselves by Treaty to implement in domestic law.
Reactions
The directive 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" [6], 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 the other hand, 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" [7]. 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" [8], "most of which qualifying as non European companies" [9] and "with a patent policy (...) tailored to the special interests of a few large corporations (...)" [10].
Other supporters of the proposed directive include Microsoft, IBM, Hewlett-Packard and the European Patent Office.
On 16 February 2005, the European Parliament's Directorate General for Economic and Scientific Policy issued a briefing paper (and summary) 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".
The way the European Commission decided to ignore all requests for further discussion on the directive led to debate over how much power the Commission should have compared to the Parliament and member states. Some members of Parliament believe that the affair is part of a power struggle between the Commission and the Parliament, and describe it as an abuse of the system.
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); 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 that the principle of software patents breaches those very international treaties which impose them according to others.
See also
External links
Studies and working papers
Last updated: 05-28-2005 18:04:42
