Issue 78 | May 19, 2003
More Objections to Software Patenting In Europe
 ZDNet News recently reported that leading scientists have "petitioned the European Parliament hoping to block the introduction of software patents." The petition comes on the heels of the latest draft for the European Software Directive that was presented to the European Parliament’s Committee on Legal Affairs and the Internal Market in February 2003. The Committee is the parliamentary body charged with consulting industry and making the final changes to the proposal for an EU software directive. Once the Committee has approved the final changes, the proposal will be sent to the Parliament and then to the Council of Ministers for final approval.

The petitioners are reportedly seeking to "make impossible, clearly, for today and tomorrow, any patenting of the underlying ideas of software (or algorithms), of information processing methods, of representations of information and data, and of interaction between human beings and computers.” If so, then they may be missing the mark on the current debate. From a U.S. perspective, the latest proposal seems to be shifting the debate over software patentability in Europe from limits on the field of patentable subject matter to minimum standards for inventive step under European Patent Office's ("EPO's") "technical contribution" requirement.

According to the Explanatory Statement accompanying the latest draft, the "technical contribution" standard has been criticized for resulting in too many applications for computer programs that are for trivial inventions or that make an insufficient contribution in relation to the state of the art. The examination of those issues before the EPO has also been criticized for tending "to take second place to the rather sterile and philosophical issue of whether or not the alleged invention confers a technical effect."

On the first point, the proposal suggests a "problem and solution approach" to determining whether the "technical contribution" requirement has been met:
When assessing whether an inventive step is involved, it is usual to apply the problem and solution approach in order to establish that there is a technical problem to be solved. If no technical problem is present, then the invention cannot be considered to make a technical contribution to the state of the art.
With regard to technical effect, the latest proposal also clarifies that
[I]nventions involving computer programs 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.
According to its author, the proposal "aims to counter any extension of the scope of patent protection for software while resisting the call to exclude patent protection altogether." Instead, the proposal sets out to avoid irreconcilable conflict with established practice at the EPO, while "subtly changing the nature of the investigation from the sterile one of exceptions into one of obviousness" and focusing "on whether claims are for bona fide inventions." It goes on to ominously conclude that, under the worst case case scenario for many Europeans, "if the proposal is rejected, the European Patent Office and its Boards of Appeal would remain the principal arbitrators of the law and there would be nothing to prevent a gradual drift towards the patentability of business methods and the like, as has been witnessed in the United States." Adoption of the Draft Report is on the agenda for the Committee's next meeting in Brussels on May 21, 2003.

To discuss these issues further, please contact the author, Bill Heinze, at Thomas, Kayden, Horstemeyer & Risley.

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