The draft was finally approved by the Council of Ministers in
March, after a 10-month delay and intensive lobbying by groups on
both sides of the debate.
Much of the concern relates to wording in the draft Directive
that opponents think will bring a liberal regime of software and
business method patenting to the
EU
, similar to that
found in the
US
.
The European Parliament, which last year extensively amended
the draft, now has to consider the draft again. The process, which
is due to end around 6th July with a Parliamentary vote on the
Directive, has a much shorter timescale than that provided by the
first reading.
The process began yesterday, with a hearing before the
Parliamentary legal affairs committee. The committee is due to vote
on the draft on 20th June.
At the meeting, the Parliamentary rapporteur on the draft
Directive, former French Prime Minister Michel Rocard, introduced
the debate. He has also published a working document setting out
his position on the draft, promising to publish a full report on
the Directive and his proposed amendments as soon as
possible.
The working document focuses on the problem of "delimiting
what is patentable and what is not."
The document says that the immaterial nature of software makes
it difficult to define in terms of patentability, because one of
the requirements is that an invention for which a patent is sought
must have a technical character.
"'Technical character' is defined as the ability to provide a
technical solution to a technical problem, that is to say to belong
to a technical field and have a technical effect. But the word
'technical' is not defined, except by 'the use of technical means'
or worse still, by the mere need for 'technical considerations',"
says the report.
This lack of clarity has led to abuses of the system, and the
patenting of software that many say should not have been
patented.
Rocard therefore puts forward his own definition:
"'Technical field' means an industrial field of application
requiring the use of controllable forces of nature to obtain
predictable results in the physical world."
This, he says, "covers every possible way of sensing the
immaterial data produced by the computer while the software is
running to produce an effect perceptible and usable by a machine or
human being."
Lobbying group the Foundation for a Free Information
Infrastructure welcomed the report.
"Rocard's outline contains all the necessary ingredients for a
Directive that achieves what most member state governments say they
want to achieve: to exclude computer programs from patentability
while allowing computer-controlled technical inventions to be
patented," said FFII President Hartmut Pilch.
But
EICTA
, a European industry body representing
Microsoft,
IBM
and many other tech companies,
expressed concern over some of the proposed amendments.
"While it is acknowledged that there may be room for further
improving the definition of 'technical contribution' as it stands
in the Common Position, any definition or test based on
'controllable forces of nature' or 'physical forces' would exclude
patents for intangible inventions, e.g. speech coding,
communication protocols, radio signal handling, error correction,
data compression etc., all of which are currently patentable and
traditionally have been patentable for decades," said
EICTA
, in a statement.
