EU Funding Study Into Software Patent Directive But Won't Wait For Results

by Ulrika Lomas, for LawAndTax-News.com, Brussels

02 June 2005

Observers have recently expressed bewilderment over the EC's decision to commission a three-year study on the likely impact of software patents, while at the same time attempting to push through the software patent directive.

The project is being undertaken by the Maastricht Economic Research Institute on Innovation and Technology (MERIT) and was launched last December.

The researchers at the University of Maastricht are looking at the economic, technical and legal effects of allowing software to be patented, and are expected to release an interim report later this year, although the study itself will not be completed until 2007.

However, even the interim findings may come after the fact, given the Commission's eagerness to have the controversial legislation passed, a situation which has confused many, including the research team in question.

Meanwhile, the European Parliament's legal affairs committee (JURI) announced last week that the wording of the directive on the patentability of computer-implemented inventions (to give the legislation its full name) was flawed, and would allow "pure software" to be patented.

The Committee considered a total of 256 proposed amendments to the draft Directive, which was approved by the Competitiveness Council (of Ministers) on 9th March despite calls from JURI for re-consideration of the text.

The European Parliament made extensive amendments to the Directive last year in the first stage of the 'co-decision' procedure, but most of these were ignored by the Commission when it prepared the Directive for approval by the Council. Several countries, notably Poland, held up approval of the Directive for a while but finally switched sides.

The Parliament objected strenuously to the Council's behaviour, and pondered making a procedural objection, but finally in April JURI announced that the Council did not break procedural rules by approving the software patent directive despite a restart request from the EP.

Speaking to the European media last week, a JURI spokesman revealed that legal experts invited to a public hearing on the matter had argued that the failure to define what constitutes a 'technical contribution' "has enabled the European Patent Office to say that any software incorporated in an invention can be patented".

The spokesman went on to add that although it had been agreed that the wording of the directive, especially in this area, was misleading, no consensus had been reached on an alternative. The JURI vote on a final version is set for 20th June, with a full Parliament vote in July. The Council will then have to accept or reject the amended Directive as it stands.

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