Legal Eye: Software patents explained
In 2003, the EU Parliament introduced more than 120 amendments to the software directive, sending it back to the Commission for further consideration. On May 18, 2004 the Competitiveness Council adopted the latest draft, setting the stage for a showdown with Parliament by rejecting 100 of the 120 proposed amendments.
Why all the fuss?
So, why do we need a new law? And, more importantly, what is all the fuss about? Under the current system, patents awarded by the European Patent Office are subject to the laws of each member state. Without a uniform directive on software patent protection, national courts are free to decide the degree and scope of patent protection to be afforded to computer software, resulting in contradictory rulings throughout the EU. Opponents of the current software directive, including most of Poland's delegates to the EU Parliament, argue that the current wording of the software directive goes too far in extending the scope of patent protection to computer software.
Specifically, the disagreement centers on the definition of what constitutes a "technical contribution," which is to be used as the litmus test to decide if a computer implemented invention deserves patent protection. In the version proposed by the Commission and Competitiveness Council, a technical contribution will be deemed to be a "contribution to the state of the art in the field of technology which is new and not obvious to a person skilled in the art." Opponents of the software directive in the EU Parliament want to limit software patent protection to those technical contributions that are not only "new and non-obvious," but also to those that have an "industrial application," fearing that without such additional criteria the use of such computer software for personal, scientific and public purposes will be restricted.
What next?
The software directive will now be returned to the Commission for further consideration. The Commission may accept Parliament's recommendation to start negotiations from scratch, ignore the recommendation and resubmit the current draft for another vote or revise the current draft and again seek Parliamentary approval.
Paul Fogo is a senior attorney with Miller, Canfield, Babicki & Partners
Why all the fuss?
So, why do we need a new law? And, more importantly, what is all the fuss about? Under the current system, patents awarded by the European Patent Office are subject to the laws of each member state. Without a uniform directive on software patent protection, national courts are free to decide the degree and scope of patent protection to be afforded to computer software, resulting in contradictory rulings throughout the EU. Opponents of the current software directive, including most of Poland's delegates to the EU Parliament, argue that the current wording of the software directive goes too far in extending the scope of patent protection to computer software.
Specifically, the disagreement centers on the definition of what constitutes a "technical contribution," which is to be used as the litmus test to decide if a computer implemented invention deserves patent protection. In the version proposed by the Commission and Competitiveness Council, a technical contribution will be deemed to be a "contribution to the state of the art in the field of technology which is new and not obvious to a person skilled in the art." Opponents of the software directive in the EU Parliament want to limit software patent protection to those technical contributions that are not only "new and non-obvious," but also to those that have an "industrial application," fearing that without such additional criteria the use of such computer software for personal, scientific and public purposes will be restricted.
What next?
The software directive will now be returned to the Commission for further consideration. The Commission may accept Parliament's recommendation to start negotiations from scratch, ignore the recommendation and resubmit the current draft for another vote or revise the current draft and again seek Parliamentary approval.
Paul Fogo is a senior attorney with Miller, Canfield, Babicki & Partners
