European Commission Reverses its Views on Patents

prostoalex writes "ZDNet UK News reports "The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law". Politician Adam Gierek posted a question to European Commission asking the institution to clarify its standings on software patents."

Comments

Pretty sure the reporter has it wrong...

[morganew]

Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"

Article 28.1 of the draft Community Patent Regulation provides that a community patent can be invalidated on the grounds that the subject matter of the patent is not patentable in accordance with Article 52 of the Munich Convention (that is, the European Patent Convention). Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

If the community patent regulation were actually adopted in its current form, one would be able to get and keep patent protection for computer software-implemented inventions in the same manner that it is currently possible under the European Patent Convention.

Unless the Commission is putting for a new version of Article 28.1 of the draft Community Patent Regulation that specifically repudiates the "as such" language in Article 52 of the European Patent Convention, the situation is the same as it ever was.

relevant text of orginal EPO Docs:

Methods of doing business are, according to Article 52(2) EPC, not to be considered to be inventions. Although not explicitly stated, this exclusion is also considered to apply to a wide range of subject-matters which, while not literally methods of doing business, share the same quality of being concerned more with interpersonal, societal and financial relationships, than with the stuff of engineering - thus for example, valuation of assets, advertising, teaching, choosing among candidates for a job, etc.. The term "business methods" has become a generally used shorthand for all of these areas.
Claims for business methods can be divided into three groups:

claims for a method of doing business in abstract, i.e. not specifying any apparatus used in carrying out the method;
claims which specify computers, computer networks or other conventional programmable digital apparatus for carrying out at least some of the steps of the business method ("computer-implemented business methods");
claims which specify other apparatus (perhaps in addition to computers) e.g. mobile telephones. ,/i>

Re:Pretty sure the reporter has it wrong...

[Anonymous Coward]

Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

Although not completely inaccurate, that's pretty misleading as the way you've arranged the words gives the impression that there's no clear exclusion of software patents. What Article 52 actually says is:

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

That final "as such" has indeed been used by the EPO as a loophole to allow software patents but in the actual Convention it applies as much to e.g. presentations of information or to aesthetic creations as it does to software.

In practice the EPO has applied it in relation to software in a manner that permits software patents in general.

The wording probably could be used to justify certain exceptions to the general prohibition on software patents (or patents on presentation of information etc.) but I don't believe that it can in good faith be used to render the explicit prohibition on software patents irrelevant.

Can any supporters of the EPO's stance give examples of things which would have been patentable had the EPC not explicitly excluded computer programs from being regarded as inventions, but which the EPO treat as non-patentable as a result of that exclusion?

Does this mean patent immunity for EU corps?

[ArghBlarg]

Can EU-based companies then freely do work to interoperate/reverse-engineer things made by the (insane) US software industry? I hope to $DIETY so. This would force the US software industry to actually focus on quality and usefullness instead of paying lawyers to lock the latest trivial feature up in patents.

Re:Clarify please?

[cp.tar]

So in European Union, YOU reverse "in Soviet Russia" jokes!

Wait a sec, something just doesn't seem right...

It will be nice to see

[Null Nihils]

a steady flow of independent innovation pouring in to the UK if they do end up getting rid of the illogical legislation standing in the way of software progress (I will refrain from using the word "innovation").

Microsoft (and anyone else commanding a patent arsenal) are saying the opposite, of course; that the market will shrink, not expand. It sure would be nice to see them eat their words if the UK does continue in a no-software-patents direction and smaller, more inventive companies take advantage of their new freedom.

Contrarian view

[xkr]

It used to be that inventions were made out of motors, belts, pulleys, and such. Consider the cotton gin, or the sewing machine. Now, inventions are made with computer programs, web interfaces, java beans, relational databases, flash. The real tests (used to be): is it novel? It is useful? More than ever, those hundred-year-old requirements still make perfect sense. Patenting the obvious is just as bad an idea now as it ever was.

In the heyday of railroads, new patents were being issued every few hours on improvements in track shape and airbrakes. The parts of the patent system that are broken, or badly in need of a tune-up, are not related to computer programs, they are related to issues of proper review, rational litigation, and what should be public disclosure of licensing, and mandatory licensing.

Patent law actually requires "fair licensing." After all, the whole point of patents was to get inventions INTO the public domain, not to promote monopolies. Its just that courts have long since given up trying to assess fair licensing, so we have forgotten that half of the original formula.

Re:Pressure?

[Anonymous Coward]

The EU software industry consists mostly of smaller companies that would be hurt by allowing for software patents. Only companies such as Microsoft, Nokia and Siemens were lobbying pro-patent as far as I recall. It might just be the EU Commision have learned to ignore the Irish commisioner, who is heavily pro-Microsoft due to the company's presence in his country.