From Frits Bolkenstein (European Commission, Dutch) via Ian Hudghton (SNP MEP) 16 April 2002 Thank you for your letter dated 6 march 2002 in which you ask for comments on an e-mail from one of your constituents concerning the proposal for a Directive on the patentability of computer-implemented inventions which was adopted by the Commission on 20 February 2002. Your constituent seems to have misunderstood the purpose of the proposal and the legal background against which it operates. It is not correct that software patents are `banned under the previous copyrights and patents directive'. The only Community level legislation in this area existing to date is the directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs. However this Directive concerns only copyright law and has no effect on the law of patents. The situation concerning patents in the member States is governed principally by the European Patent Convention, which is an international treaty completely separate from the Community. This provides that computer programs `as such' are not patentability, but legal decisions over the 25 years that the European patent system has been in operation have found that this exception does not extend to processes carried out by computers which have a technical character. The proposal was adopted by the Commission following an extended period of consultations going back several years. A very wide range of views was received and taken into account during that process. The conclusion that Commission came to was that there should be no extension of the scope of patentability to cover computer programs as such, but that the law should be harmonised largely on the basis of current practice in that interests of legal certainty and transparency, and to eliminate certain divergences which had arisen as national courts interpreted the Convention. Thus, the proposal will not make anything patentable which was not already patentable. In particular, mathematical algorithms cannot and will not be protectable under patent law. Moreover, in one important respect, the Commission has decided that current practice goes too far and the proposal would provide that so-called `program product claims' whereby the protection conferred by a patent can extend to computer programs in isolation, should no longer be allowable. In these circumstances, it is difficult to see how the Directive will increase the regulatory burden on businesses. As regard your constituent's other point, I can assure you that the Directive text was prepared by the services of the Commission, and that neither the Business Software Alliance nor any other organisation or individual was given privileged access during that process. I am aware that a supposedly `leaked' draft of the text has been reported to bear the name of a member of the BSA's staff, but no credibility can be given to this story since the data field in question associated with a Microsoft Word document can very easily be modified at any time by anybody with `write' access to the file. The adoption of the proposal is of course not the end of the story. The council and the European parliament now need to decide upon their position on this issue. Frits Bolkestein -- From `Lord' Inglewood (Tory MEP) 21 June 2002 Thank you for your letter about the proposed EU directive on the patentability of computer implemented inventions. Your concerns were forwarded to me by Struan Stevenson as I am the Party's Spokesman on Legal Affairs, the Committee responsible for this piece of legislation. As you will no doubt have gathered, the legislation in question is complicated and has given rise to much misunderstanding, leading to many people being wrongly informed about the Proposal. The proposal for this directive is not intended to allow the patenting of software which is not currently patentable, and equally significantly, now have earlier EU Directives specifically banned software patents. The law on what is patentable is governed by the European Patent Convention (EPC). This expressly excludes from patentability both business methods and `software as such' (but not technological innovations involving software for example in the controlling of mechanical tools). This reflects the traditional position, which i that patents are for technological innovation. Thousands of patents have been granted by the European Patents Office and by member States' national patent offices for computer-implemented inventions The UK Patent Office estimates that perhaps 15% of the patents it grants are software related. Many of these patents are n the core areas of information technology, i.e. digital data processing, data recognition, representation and storage, as well as inventions involving programs which control processes in fields such as automotive and mechanical engineering. The background to the Directive is that the law on how far software is patentable has become unclear. it is governed, as i have already mentioned, by the European patent Convention (EPC), which is over 20 years old, during which time the technology has of course advanced enormously. Judicial and patent office efforts in the various EPC member countries to determine exactly which inventions involving software should be patentable have produced different results. The result is widespread uncertainty. Both the UK Government and the Commission conducted consultations in the autumn of 2000. You refer to the Government's conclusions of the UK consultation on software patents, available at http://www.patent.gov.uk/about/ippd/consulation/closed/index.htm As the consultation showed, there are significant differences of opinion among the public, and business. Although almost nobody disputed the need to clarify the law, there was disagreement about what is should say. Broadly there were three schools of thought: 1) That, as in the US, software should be patentable even where there is no technological innovation, so as to encourage the spur to innovate that patents provide (from some patent agents and a small minority of companies) 2) That software should not be patentable - supporters (mostly individuals) pointed to the growth of `Open Source' software in recent years, whereby, broadly, software is made available on condition that no restrictions are places on its use by others; 3) That the technical effect test is right - (a view held mostly by companies and representative boards) it would not make sense to deny a patent to an invention implemented in software when one would be available to an invention achieving the same thing but implemented in hardware. The central conclusion was to reaffirm the principle that patents are for technological innovation, so that software should not be patentable when there is no technological innovation, and that technological innovation should not cease to be patentable merely because the innovation lies in software. However, there is a need for the law to express this more clearly, and for this clarification to take place as soon as practicable. Methods of doing business should remain unpatentable. Since then the Commission has proposed a Directive which reflects this view. The stated purpose of the proposal they have published is to harmonise and clarify the law on the basis of the existing position. The Proposal is close to that of the UK policy. The UK Patent Office has invited comments from those who responded to the UK consultation in 2000, a copy of the invitation to comment, and links to the Commission proposal can be viewed on the Patent Office website at: http://www.patent.gov.uk/about/consultations/written/econsult16.pdf I do hope that is helps to answer your question. if you have any more questions please do not hesitate to get back in touch with my office.