JURI Votes Through Controversial Software Patent Directive

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

23 June 2005

JURI, the European Parliament's Legal Affairs Committee, gave a second reading to the controversial directive on the patentability of computerised inventions on Monday, rejecting most of the 256 amendments that had been proposed.

The report was adopted by 16 votes to 10 with no abstentions, leaving the Council's text largely unchanged, rejecting most of the amendments tabled to limit the possibility of patenting computerised inventions. As a result, MEPs have agreed that computerised inventions, such as washing machines, cellular phones or ABS car breaking systems, should enjoy protection under patent law. Moreover, the protection would generally extend to the computer program - as advocated by big software companies - although only when the software is necessary for the functioning of the invention.

The committee's debate prior to the vote mirrored the differing views within the industry. Advocates of "open source" software, such as smaller companies, want the patents to be limited to the inventions themselves, leaving the underlying software unprotected and available to other users. Moreover, these firms claim copyright already protects their inventions and are afraid that patenting would raise legal costs.

By contrast, large information technology firms are in favour of a patent regime that would protect not only individual inventions that use computer programs but also the programs themselves. They argue that patents would encourage research spending and defend European inventions from US competition. These firms will on the whole be satisfied if Parliament's plenary endorses the committee vote in July.

There are about 30 changes to the text of the Directive, including some new articles. Importantly, the Committee's rapporteur, Michel Rocard, has ensured that "computer-aided invention" should be substituted for "computer-implemented invention" throughout the text of the directive. "The expression 'computer-implemented' is not suitable, because it may let one think that an invention can be wholly realised by means of a computer, which would mean that software can be patentable. Since both the Commission and the Council agreed that software should not be patentable, the scope of the directive has to be defined so as to exclude this case," he explained.

The Directive has had a tangled history. 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.

After the full Parliament votes on the new text in July, under the co-decision procedure the European Council will then have to accept or reject the amended Directive as it stands.

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