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Parliament urged to restrain EPO's software patenting

Campaigner calls on EU to send 'signal to the world'

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The European Parliament should pass a resolution urging the European Patent Office to ensure that it complies with the existing rules on the patentability of computer-related inventions, according to leading campaigner Florian Mueller.

Mueller, founder of Nosoftwarepatents.com, was prominent in the debate over Europe's proposed patent Directive earlier this year. In an guest column today on EUobserver.com, he argues that the Parliament should also call upon the European Commission to start a new legislative process on the controversial issue.

At present, inventors can seek patents for computer-related inventions from the European Patent Office (EPO), under the 1973 European Patent Convention, or via national patent offices in EU member states under national law.

In theory, the systems should be consistent: all should follow the Convention, which says that computer programs "as such" are not eligible for patenting. But different interpretations of that rule have evolved, with the European Patent Office in particular becoming rather liberal about its granting of software-related patents.

In 2002, the Commission published a draft Directive that intended to harmonise the approaches of the various patent offices and only permit so-called computer-implemented inventions, not pure software.

Its proposal provided that, in order to be patentable, an invention that is implemented through the execution of software on a computer or similar apparatus has to make a contribution in a technical field that is not obvious to a person of normal skill in that field. The Commission considered this consistent with the 1973 Convention.

But the text was never agreed. Some feared that Europe would get a much more liberal regime, like that of the US. Others feared that they would lose the patent protection they already enjoyed.

As a result, on 6th July this year, the proposal was killed by the European Parliament. The Commission has no plans to put forward a new draft in the near future.

But this means that the inconsistent practice that caused the Commission to seek to clarify the law is still continuing.

In his column Mueller argues that the Parliament should "call on the administrative council and the president of the European Patent Office to take the appropriate measures so that the existing law be complied with," and persuade the European Commission to start a new legislative process on the controversial issue.

The objective of the resolution, he says, would be to influence the policy of the European Patent Office (EPO), and possibly to request a new proposal for a software patent directive from the European Commission along the lines of Parliamentary amendments made to the previous draft.

A parliamentary resolution would not be legally binding upon the European Patent Office, but Mueller believes that it would carry a lot of political weight.

According to his column, "lawmakers in EU member countries could pass national legislation in the spirit of the EP's suggestions," and the European Parliament's position would also influence the patent debate in other parts of the world. In particular he mentions a patent reform bill that is presently being discussed in the US Congress, and the as yet unclarified status of software patents in India, South America, South Africa, and other regions.

“If Europe doesn't send a signal to the rest of the world, then the US government might just have its way," writes Mueller.

The intellectual-property activist also comments on the Community Patent Directive, a proposed law on which the EU has failed to reach agreement for a number of years.

The Community Patent is intended to 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.

According to Mueller, "a Community Patent Directive could only achieve its stated goal of making Europe more competitive if it's part of, or a subsequent measure to, a fundamental paradigm shift in patent policy" – in effect higher standards and substantially lower numbers of patent grants.

The European Patent Office currently receives around 180,000 new patent applications a year, about half of which result in the issuance of a patent, says Mueller.

© Pinsent Masons 2000 - 2005

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