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Community Patent gets embroiled in software patent fight

The fight over software patents looks set to continue in Europe. While the European Parliament rejected the Directive on Computer-Implemented Inventions yesterday, the European Council is already looking at alternative plans.07 Jul 2005

There will not be any Directive on Computer-Implemented Inventions following Wednesday's vote. During the debate the previous day, European Commissioner Joaquín Almunia told MEPs: "Should you decide to reject the common position, the Commission will not submit a new proposal."

According to a statement from the European Parliament, attention now moves to the proposed directive for a Community Patent, currently in discussion in the Council. According to the Parliament, the Community Patent has been mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.

The European Commission proposed the creation of a Community Patent in July 2000 – three months before it consulted on its proposal for what became the draft Directive on Computer-Implemented Inventions.

The Community Patent would give inventors the option of obtaining a single patent that would be legally valid throughout the European Union. The proposal aims to lessen the burden on businesses by making it cheaper to obtain a patent and by providing a clear legal framework in case of dispute.

At present, patents are awarded either on a national basis or through the European Patent Office (EPO) in Munich, which grants so-called European Patents. These are essentially a bundle of national patents.

The EPO offers a single application and granting procedure and so saves the applicant the trouble of having to file with a series of national patent offices. But each Member State may still require that, in order to be legally valid in their territory, the European Patent must be translated into their official languages. Moreover, in the case of disputes, it is national courts that are competent so that, in principle, there can be 15 different legal proceedings, with different procedural rules in every Member State and with the risk of different outcomes.

The proposal for the Community Patent does not seek to amend the laws on patentability. But under the Commission's proposal, all Community Patents would be issued by the European Patent Office.

This is likely to upset those opposed to software-related patents, because the EPO has to date taken the most liberal approach to patentability, albeit enforcement has been left to national courts and national laws. In terms of an agreement reached by the Council of Ministers in 2003, Community Patent disputes would go before a new Community Patent Court.

There has been little progress on the Community Patent since that agreement by the Council. It did not extend to consensus on the requirements for the translation of patents and on how infringements of patents which might arise as a result of mistranslations should be treated. The EU's Competitiveness Council met in May 2004 to discuss these outstanding matters but also failed to reach agreement on how to proceed.