Directive on Patentability of Computer Programs – Latest Position 

January, 2005 -

When it comes to the patentability of computer-implemented inventions, Europe and the United States have differing and diverse opinions. The United States has a liberal approach to the patentability of computer software and will therefore grant patents for such inventions. Not so in Europe though, where computer programs are patentable only if they make a “technical contribution” to the state of the art. However, divergent positions are being adopted on this issue by various European Member States as a result of case law and administrative practices.

Given that such differences create barriers to trade and impede the functioning of the Internal Market, the European Commission proposed a Directive in 2002 to harmonise legal rules governing the patentability of computer-implemented inventions. When it was considered by the European Parliament in September 2003, a number of amendments to the proposal were adopted.

In May 2004, the European Council of Ministers approved a compromise proposal put forward by the Irish Presidency. This proposal took account of discussions at the EU Council Working Group and the Committee of Permanent Representatives. Agreement was reached by a qualified majority. Only Spain voted against the compromise, with Austria, Italy and Belgium abstaining. The final approved text included 21 amendments proposed by the European Parliament.

The proposal was welcomed by the European Commission and the Internal Market Commissioner Frits Bolkeskein stated that he believed that the Directive would provide a major contribution to European competitiveness and assist the proper functioning of the Internal Market.

However, substantial differences remain between the positions adopted by the European Parliament and that of the European Commission/European Council of Ministers. These differences relate to the exceptions from patentability for computer-implemented inventions. While the European Parliament wants wide exclusions covering the use of patented technology for interoperability and data handling, the European Commission/Euopean Council of Ministers believe that this will harm EU competitiveness as it goes beyond what is required to set a balance between rewarding inventors and allowing competitors to build on those inventions.

The compromise proposal will have a second reading before the European Parliament where approval from a majority of the MEP’s is required. However, no action on this matter is likely until 2005 (at the earliest) as citizens of Europe go to the polls later this month to elect their representatives to the new European Parliament which will not sit until September 2004.



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