European Commission Changes Position on Software Patents

The European Commission (EC) has stated that the forthcoming Community patent regulation will exclude computer programs from patentability. While the precise meaning of this statement is not yet clear, it represents a significant change in tone as the EC had said last year, following rejection of the Software Patent Directive, that the European Patent Office (EPO) would continue to grant software patents involving a "technical contribution". The regulation would be applied by and bind the EPO, which is not a Community body, and allow patents to be challenged on the basis of the European Patent Convention of 1973 (EPC) in the European Court of Justice. Article 52 of the EPC excludes computer programs, "as such", from patentability. The EPC does not exclude machines incorporating software or computer algorithms per se, although business and mathematical methods are excluded. The EPC was initially interpreted by the EPO as excluding devices whose only innovation was implemented in the software contained in them. However, in recent years the EPO has in fact been issuing patents for such software-based inventions. Decisions of the EPO Board of Appeal, which are not binding on member states, indicate that the test is whether a program produces a "technical effect". The result has been that patentability of computer-implemented inventions varies between member states as their case law has diverged. A directive to clarify the patentability of, and establish common practice for, the national courts was proposed in 2002, but was overwhelmingly rejected in 2005. The directive would have limited patentability of computer programs to those providing a non-obvious "technical contribution". The meaning and potential impact of the directive was widely debated, being seen by some as codifying existing EPO practice and by others as an attempt to greatly expand patentability. For the EC's statement, visit: http://makeashorterlink.com/?K30B2183D For a related news story, see: http://makeashorterlink.com/?D4DA3383D Summary by: Tom Feather