Software Patents Under The European Patent Convention - Directive On The Patentability of Computer-implemented Inventions

Directive On The Patentability of Computer-implemented Inventions

Proposed in 2002, one motivation at least for the controversial draft EU Directive on the Patentability of Computer-Implemented Inventions was to have been to establish common practice for the national courts; and, in cases of doubt as to its interpretation, to have created a requirement for national courts of last instance to seek a ruling from the European Court of Justice. Even though Switzerland for instance is a member of the European Patent Organisation but not a member of the European Union, the EPO also signalled that it would have been likely to adjust its practice, if necessary, to conform with whatever text had finally emerged from the EU legislative procedure,

However, the directive became highly controversial, drawing increasing legislative notoriety to this area of European law. Proponents of the Directive claimed its purpose was to clarify the meaning of Article 52, by consolidating existing EPO practice. Opponents claimed the Directive would dismantle perceived more stringent restrictions against software patenting employed or employable by national courts, and lead to an increased assertion of patents on software Union-wide across the EU. After a history of procedural wrangling, and sustained lobbying and publicity efforts from both sides, the Directive, which had largely been supported by the European Commission and most member-state governments in contrast with their national parliaments, was overwhelmingly rejected by the European Parliament on 6 July 2005, terminating the legislative procedure.

This failure to reform the exclusion of software followed the failed attempt to delete programs for computers from Art. 52(2)(c) of the convention in 2000 at the diplomatic conference in Munich. At the time the reform was explicitly derogated in order to await the outcome of the consultation process for this EU Directive.

Final interpretation of the law in this area thus continues to be the responsibility of national courts, following national case-law (except when a European patent application is refused or when a European patent is revoked in opposition proceedings before the EPO, in which case the EPO has the final say regarding the interpretation of the EPC). A decisive supra-national authority for European patent law cases could be created under either proposals for the Community patent or the European Patent Litigation Agreement. As of early 2006 these are the subject of a public consultation by the EU Commission, preparatory to new expected legislative activity.