The Directive seeks to harmonise European rules on the patentability of "computer-implemented inventions" – devices like mobile phones, intelligent household appliances, engine control devices, machine tools and computer program-related inventions – but concerns have been raised that the Directive risks bringing to Europe the more liberal regime of software and business method patenting that exists in the US.
When the draft finally came before Parliament in September, it was only passed after many amendments were made to tighten the scope for patentability, pleasing small businesses and developers but angering some of the big players in the industry, who called on the Council of Ministers to reverse the position.
European Trade Ministers, meeting at the Competitiveness Council in Brussels this week, have now done so, adopting a common position that re-instates much of the original Commission proposals. Spain voted against the proposals, while Austria, Italy and Belgium abstained.
The Commission welcomed the decision, claiming that the text approved by the Competitiveness Council would provide legal clarity while avoiding any drift towards patents for business methods or computer programs that do not provide any technical contribution to the state of the art.
Internal Market Commissioner Frits Bolkestein explained:
"We must reward investment in innovation if a real knowledge-based economy is to flourish in Europe. It is nothing more than basic common sense to make sure that inventions are not excluded from patent protection simply because they use computer software. But the Commission has always been committed to making sure that patents in this field, as in any other, cannot be used to squeeze out legitimate competition or to prevent others getting fair access to technology and ideas. This text achieves that balance and I very much hope the new European Parliament will be able to adopt it swiftly."
The balance has been achieved, says the Commission, by creating rules for exclusions from patentability.
In particular, the text makes clear that a computer program as such cannot constitute a patentable invention and that a computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus.
Accordingly, says the Commission, inventions involving computer programs, whether expressed as source code, object code or any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run, shall not be patentable.
"Technical contribution" is defined in the text as a contribution to the state of the art in a field of technology that is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features.
The problem, however, appears to be that the word "technical" is not itself defined. This leaves scope for making an argument that anything is "technical" and therefore patentable.
The draft will be rubber-stamped by the Council of Ministers shortly, before being sent back to the Parliament for a second reading, where it will undoubtedly be the subject of vigorous debate.
But MEPs face an uphill battle in seeking to reinstate their amendments. According to ZDNet News, they require a two-to-one or three-to-one majority of MEPs to achieve this and, even if successful, the Council of Ministers will again need to approve the reinstated amendments. In the event that the two institutions cannot agree, a 'sudden death' committee will decide the issue.
The indecision of at least one Member State was evident in the transcript of the Competitiveness Council's debate. The following is a section of that transcript, with the Irish Presidency asking each representative to vote.
IE: Italy, are you a no?
IT: No, we abstain
IE: Belgium: abstain
IE: And Denmark? Can I hear from Denmark please?
DK: I would really like to ask the commission whether they couldn't fix the last sentence put forward by Italy. It was in the original German proposal.
IE: I think the Commissioner already answered that question, I'm sorry Denmark. So are you yes, no, abstain?
DK: I think we wouldn't, we're not hap...
IE: Can I assume you're a "yes"?
DK: We're not happy
IE: But are you 80% happy?
DK: But... I think we...
IE: We don't need you you to be totally happy. None of us are totally happy.
DK: I know that, I know that.
IE: If we were, we wouldn't be here.
DK: I think we're not very happy, but I think we would, we would...
IE: Thank you very much
DK: ... we would like to see a solution today.
IE: Spain, are you abstention or no?
ES: Sorry, no.
IE: Thank you Spain. Austria?