Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.
The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."
This statement appears to contradict what the EC said last year — that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive.
The Foundation for a Free Information Infrastructure (FFII), which has doggedly campaigned against software patents in Europe, was confused at the EC's change of tune.
"I'm stunned," said Pieter Hintjens, the president of the FFII on Wednesday. "Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"
In the past, software patent campaigners have expressed concerns that the Community Patent legislation would be used by the EC to legalise software patents.
The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.
"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.
"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.
"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.
Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.
Talkback
This is not much of a shock really.
All the European Parliament's statement really says, is that when prosecuting Community patents, the EPO will be bound by Community law instead of the EPC. This makes sense, as Community patents and EPC patents are separate, even if they will be prosecuted by the same office, i.e. the EPO.
What is more interesting is the fact that the EPO, when prosecuting EPC patents, may be bound by the ECJ which is not bound by EPO case law. This only seems to be possible if the EPO joins the EC. It is unclear from the EP's statement whether the EPO is going to join the EC, or whether the EC is going to join the EPC. If the latter, then Community patents will probably be bound by existing EPO case law, including that relating to software patents.
Until such a time as one joins the other, though, EPC patents and Community patents will be separate, and case law in respect of one probably will not affect the practice of the other. In the interest of European harmonisation, this is not a very desirable situation.
Well, it's a start but the thing left to do is to retract all granted software patents so far per today and without possibility of appeal to start making a positive difference. Until then it's still a story of who has the deepest pockets to continue the legal fighting.
Look out, there must be a dog burried in the text some where.
My email to the EPO:
I wish to inform you that I actually agree with your decision, that software patents are not to be issued or respected.
A patent on software is identicle to a Patent on a cook book.
Both are a collection of words used to give directions in accomplishing a specific task.
Since a cook book is not patentable anywhere in the world, software is not patentable, under the existing laws, anywhere in the world.
I salute you for having both the intelligence and courage to set the correct path and walk it, something that other government bodies fail miserably at doing.
Sincerely,
Jaqui
Are software patents dead now in the EU or what?: