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06/15/2004: "Software Patent Issue Revisited 2"

I did some emailing recently regarding the software patent issue and have just received the following response from the Irish Department of Enterprise, Trade and Employment. Anyone with a good understanding of the issue want to critique their response?

Software "as such" is excluded from patentability by EU Member States'
patent laws and Article 52 (2) of the European Patent Convention (EPC).
However, computer implemented inventions may be patentable under certain
conditions and many such patents have already been granted within the EU.

The position facing the Community is that the application of the case law
and the administrative practice of Member States in this area is divergent.
As a result, it is currently possible to patent a particular computer
implemented invention in one Member State and not in another, with negative
consequences for the efficient functioning of the Internal Market.

For this reason, the Commission brought forward, in 2002, a proposal for a
Directive of the European Parliament and of the Council on the
patentability of computer-implemented inventions, the aim of which was to
rectify this situation and to make the conditions for patentability more
transparent ? to give innovators and enterprises the ability to compete
effectively in the single market.

The Competitiveness Council reached a Common Approach on the Directive in
November 2002.

Since the European Parliament adopted its amendments to the proposed
Directive in September, 2003, the matter was discussed on a number of
occasions in the EU Council Working Party on Intellectual Property
(Patents) who agreed to take on board a number of the European Parliament
amendments while rejecting others.

On 18 May, 2004 the Competitiveness Council reached political agreement on
a common position, based on a proposal put forward by the Irish Presidency,
which took account of discussions at EU Council Working Group, and the
Committee of Permanent Representatives. The final text agreed took account
of a number of amendments put forward by delegations to further clarify the
conditions under which a computer implemented invention might be patented.
It will now go back to Parliament for second reading, the next stage in the
co-decision process.

The open source software interests, have expressed a fear that the
Directive, if adopted, would permit the patenting of software and business
methods and affect the ability of small and independent software developers
to operate. It is pointed out that this was not the intention behind the
proposal; its purpose is not to extend the patentability criteria but
rather to clarify them to ensure consistent application by the Member
States.

I should also mention that Article 6 of the agreed position provides that
acts permitted under Articles 5 and 6 of Directive 91/250/EEC on the legal
protection of computer programs by copyright, and, in particular, the
provisions in respect of decompilation and interoperability are not
affected by the rights to be conferred by the proposed Directive. The
proposed Directive also makes clear that the provisions of Articles 81 and
82 of the Treaty, which relate to competition rules, and, in particular,
abuse of a dominant position, apply.

In addition, the text as agreed makes it explicit that a computer program
as such cannot constitute a patentable invention, and that inventions
involving computer programs, whether expressed as source code, object code
or in any other form, which implement business, mathematical or other
methods and do not produce any technical effects beyond the normal physical
interactions between a program and the computer, network or other
programmable apparatus in which it is run shall not be patentable.

I hope that this clarifies the position for you.


Yours sincerely,

XYZ
Intellectual Property Unit
Dept Enterprise, Trade and Employment
Earlsfort Centre
Lower Hatch Street
Dublin 2