The European Parliament rejected, by 648 votes to 14 with 18 abstentions, the Council’s common position on the software patent directive. Before the vote, rapporteur Michel ROCARD (PES, FR) said Parliament was split fifty-fifty on the issue and all political groups decided to reject the text rather than risk a result they could not accept.

The common position, if approved, would have allowed patenting of computer-implemented inventions. This outcome was advocated by big software firms, which argued that patents would encourage research spending and defend European inventions from US competition. On the contrary, the directive was criticised by supporters of "open source" software, mainly smaller companies, who claimed copyright already protects their inventions and were afraid that patenting would raise legal costs.

The rejection of the common position means the end of the legislative procedure and the fall of the directive.

Attention now moves to the proposed directive for a Community patent, currently in discussion in the Council, mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.

T6-0275/2005
OJ C 157 06.07.2006, p. 0095-0265 E

The European Parliament rejected, by 648 votes to 14 with 18 abstentions, the Council’s common position on the software patent directive. Before the vote, rapporteur Michel ROCARD (PES, FR) said Parliament was split fifty-fifty on the issue and all political groups decided to reject the text rather than risk a result they could not accept.

The common position, if approved, would have allowed patenting of computer-implemented inventions. This outcome was advocated by big software firms, which argued that patents would encourage research spending and defend European inventions from US competition. On the contrary, the directive was criticised by supporters of "open source" software, mainly smaller companies, who claimed copyright already protects their inventions and were afraid that patenting would raise legal costs.

The rejection of the common position means the end of the legislative procedure and the fall of the directive.

Attention now moves to the proposed directive for a Community patent, currently in discussion in the Council, mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.

T6-0275/2005

Debate in Parliament

A6-0207/2005

A6-0207/2005

The committee adopted the report by Michel ROCARD (PES, FR) broadly approving the Council's common position under the 2nd reading of the codecision procedure, subject to a number of amendments. The report was adopted by 16 votes to 10 with no abstentions, following a lively debate which mirrored the diverging views on this controversial topic. The main amendments were as follows:

- a clearer definition of "technical contribution" as laid down in Article 2 : "The technical contribution is the set of features by which the scope of the patent claim as a whole is considered to differ from the state of the art.............The technical contribution must fulfil the conditions for patentability. In particular, it must be novel and not obvious to a person skilled in the art";

- introduction of an improved version of Parliament's 1st reading amendment clarifying the term "field of technology" based on Article 27 of the TRIPS agreement: "an application domain requiring the use of controllable forces of nature to achieve predictable results in the physical world";

- a new definition was introduced into Article 2, namely, "interoperability" and the operations required to achieve it;

- MEPs clarified expressly in Article 3 that a patent application has to disclose an invention clearly and comprehensively so that it can be implemented by someone working in the field;

- a new clause in Article 5 specified that, "where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement";

- a new Article 6a required Member States to ensure that licences are available to use a patented computer-implemented invention "on reasonable and non-discriminatory terms and conditions" when such use is indispensable for achieving interoperability between computer programs and is in the public interest;

- when monitoring the impact of computer-implemented inventions on small and medium-sized enterprises (SMEs), the Commission should consider the effects not only on innovation and competition but also on employment in such businesses;

- a new Article 7a proposed setting up a committee focused on SME-related issues to ensure compliance with the monitoring requirements laid down in the directive. The committee would have a mandate to recommend necessary reforms;

- a new Article 7b proposed that the Commission conduct a feasibility study into a Fund to provide financial, technical and administrative support for SMEs dealing with issues related to the patentability of computer-implemented inventions;

- the Commission should report to Parliament and the Council on the effects of the directive within 3 years rather than 5 years as proposed;

- MEPs wanted to see a single patent system across the EU, in the interests of legal certainty, and therefore introduced a new clause into Article 8 requiring the Commission to submit a proposal within a year for an effective European Community patent which provides for democratic control by the European Parliament over the European Patent Office (EPO) and the European Patent Convention (EPC). Moreover, in a new Article 8a , the Council was required to report to Parliament each year on the activities of Member States that are Contracting States to the EPC in the administrative council of the EPO.

PE360.003

PE357.845

PE357.776

The Commission has indicated that it accepts the common position, even though this differs from the Commission’s original proposal in certain respects. In general, the Commission believes that the common position strikes an acceptable balance between the interests of right holders and those of competitors and consumers (including in the open source community). This balance is further safeguarded by the new requirements for the Commission to monitor the impact of computer-implemented inventions in particular on small and medium-sized enterprises and on the open source community.

As far as the Commission is concerned, the directive continues to address the key objective stated in the explanatory memorandum of the Commission’s proposal, namely the harmonisation of patent law between the Member States and the resolution of legal uncertainty in this field. It is crucial to note that there is to date no Community legislative instrument which affects general patent law either in a horizontal manner or specifically relating to computer-implemented inventions. The adoption of this directive would therefore have the effect of bringing patent law in this field, for the very first time, explicitly within Community jurisdiction.

A failure to adopt a directive would prevent Community institutions from exercising control in this strategic area of the European economy, which would thus remain within the remit only of national patent offices and courts and the European Patent Office in Munich.

The following statement is entered in the minutes of the Council adopting the common position : the Commission considers that Article 6, read in conjunction with Recital 22, permits any acts as described by Articles 5 and 6 of Directive 91/250/EEC on the legal protection of computer programs by copyright, including any acts necessary to ensure interoperability, without the need for authorisation from the patent’s right holder.

COM(2005)0083
EUR-Lex

The Council, acting by qualified majority, has adopted a common position which incorporates the substance of some 25 of Parliament’s amendments at first reading. The Council has amended or merged a number of recitals appearing in the Commission's proposal and has adopted a few additional ones.

Throughout the common position, the Council has sought to strike a reasonable and workable balance between the interests of rightholders and those of other parties concerned.

The Council’s main amendments are as follows:

- it has partly followed the European Parliament’s amendments on definitions by deleting the words “one or more prima facie novel” from the definition of computer implemented invention”, on the grounds that these are redundant and risk creating confusion as regards their relationship with the novelty test, which applies at the stage of the examination of the patentability of any invention. In addition, the Council replaced “technical field” with “field of technology”, which is the term commonly used in international agreements on patent law, such as the TRIPS Agreement; inserted the words “new and”, in order to clarify the criteria for “technical contribution”; added a second sentence, which is basically the provision of Article 4(3) of the Commission proposal slightly amended in order to clarify that even if non-technical features may be taken into consideration when assessing the technical contribution of a given computer implemented invention, it is indispensable that any patent claim comprises technical features as well;

- it includes an Article which obliges Member States to ensure in their national law that computer-implemented inventions are considered to belong to a field of technology. In accordance with Parliament’s amendment, the Council has decided to delete the Article which considers that a general obligation of this nature would be difficult to transpose into national law;

- in order to avoid any misunderstanding, the Council has included a paragraph which comprises a clear statement to the effect that a computer program as such cannot constitute a patentable invention;

- it includes a paragraph was added in order to clarify that in certain circumstances and under strict conditions a patent can cover a claim to a computer program, be it on its own or on a carrier. The Council considers that this would align the Directive on standard current practice both at the European Patent Office and in Member States;

- the Council has taken on board European Parliament’s amendment as regards the relationship with Directive 91/250/EC, considering that this is clearer than the text of the Commission’s proposal. It has removed references to provisions concerning semiconductor topographies or trade marks as these were considered as irrelevant in this context;

- Council has maintained the text of the Commission proposal concerning the report on the effects of the Directive. In addition, it also added a reference to the Community’s international obligations. This is understood as primarily a reference to the TRIPS Agreement. The reference to the Community Patent was deleted as this is beyond the scope of the current Directive;

- the Council stipulated a transposition period of twenty four months (not defined in the Commission’s proposal). Parliament envisaged eighteen months.

11979/1/2004
OJ C 144 14.06.2005, p. 0009-0015 E

The Council, acting by qualified majority, has adopted a common position which incorporates the substance of some 25 of Parliament’s amendments at first reading. The Council has amended or merged a number of recitals appearing in the Commission's proposal and has adopted a few additional ones.

Throughout the common position, the Council has sought to strike a reasonable and workable balance between the interests of rightholders and those of other parties concerned.

The Council’s main amendments are as follows:

- it has partly followed the European Parliament’s amendments on definitions by deleting the words “one or more prima facie novel” from the definition of computer implemented invention”, on the grounds that these are redundant and risk creating confusion as regards their relationship with the novelty test, which applies at the stage of the examination of the patentability of any invention. In addition, the Council replaced “technical field” with “field of technology”, which is the term commonly used in international agreements on patent law, such as the TRIPS Agreement; inserted the words “new and”, in order to clarify the criteria for “technical contribution”; added a second sentence, which is basically the provision of Article 4(3) of the Commission proposal slightly amended in order to clarify that even if non-technical features may be taken into consideration when assessing the technical contribution of a given computer implemented invention, it is indispensable that any patent claim comprises technical features as well;

- it includes an Article which obliges Member States to ensure in their national law that computer-implemented inventions are considered to belong to a field of technology. In accordance with Parliament’s amendment, the Council has decided to delete the Article which considers that a general obligation of this nature would be difficult to transpose into national law;

- in order to avoid any misunderstanding, the Council has included a paragraph which comprises a clear statement to the effect that a computer program as such cannot constitute a patentable invention;

- it includes a paragraph was added in order to clarify that in certain circumstances and under strict conditions a patent can cover a claim to a computer program, be it on its own or on a carrier. The Council considers that this would align the Directive on standard current practice both at the European Patent Office and in Member States;

- the Council has taken on board European Parliament’s amendment as regards the relationship with Directive 91/250/EC, considering that this is clearer than the text of the Commission’s proposal. It has removed references to provisions concerning semiconductor topographies or trade marks as these were considered as irrelevant in this context;

- Council has maintained the text of the Commission proposal concerning the report on the effects of the Directive. In addition, it also added a reference to the Community’s international obligations. This is understood as primarily a reference to the TRIPS Agreement. The reference to the Community Patent was deleted as this is beyond the scope of the current Directive;

- the Council stipulated a transposition period of twenty four months (not defined in the Commission’s proposal). Parliament envisaged eighteen months.

11979/1/2004

16120/2004

T5-0402/2003
OJ C 077 26.03.2004, p. 0087-0229 E

T5-0402/2003

Debate in Parliament

A5-0238/2003

A5-0238/2003

PE327.249/AC4

PE327.249/AC6

PE327.249/AC1

PE327.249/AM

PE321.981/DEF

PE327.249

PE312.545/DEF

2462

CES1031/2002
OJ C 061 14.03.2003, p. 0154

2412

COM(2002)0092
EUR-Lex
OJ C 151 25.06.2002, p. 0129 E

COM(2002)0092
EUR-Lex

EUR-Lex
COM(2000)0199