Software patents bill struck down in European parliament

Brussels (Belgium) - A bill before the European Parliament that would have established a very permissive legal boundary for software to qualify for patents, was soundly struck down by a vote this morning. Had it become law, the Software Patents Directive would have established a Europe-wide standard for patentability similar in scope to US patent law, which mainly mandates that the method software employs to achieve a task is demonstrably unique.

Originally drafted by the Commission in February 2002, the Software Patents Directive would have implemented a standard interpretation of patentable computer-based methods and methodologies by member countries. As proposed, the SPD mandated that patentable methods must demonstrate at least one specific "technical contribution" - a non-obvious principle made possible exclusively by technology, not just through personal skills or know-how.

But a burdensome array of 21 amendments drafted in May 2004 by the European Council - the EU’s committee of member nations’ elected ministers - reportedly in consultation with major software manufacturers, lowered the boundaries of qualification extensively, in an attempt to "harmonize" European and American patent law interpretations. One commissioner who supported the so-called "Common Position" characterized it as rewarding "investment in innovation if a real knowledge-based economy is to flourish in Europe."

A Council press release from that month announcing the Common Position openly acknowledged ministers’ differences between the Council and the position of the European Parliament, stating, "The Parliament wanted wide exclusions covering the use of patented technology for interoperability and data handling. However, the Commission and Council felt that these went beyond what was required to set the right balance between rewarding inventors for their efforts and allowing competitors to build on these inventions, and could ultimately harm EU competitiveness."

The release quoted Frits Bolkestein, Internal Market Commissioner, as saying, "The Commission has always been committed to making sure that patents in this field, as in any other, cannot be used to squeeze out legitimate competition or to prevent others getting fair access to technology and ideas. This text achieves that balance and I very much hope the new European Parliament will be able to adopt it swiftly."

So while some open-source opponents to the original SPD are claiming victory in their vigil to promote free and open utilization of software methods, Council members may also have reason to celebrate, having successfully sunk the original language of the directive, with which members evidently disagreed.

A press release issued this morning by the European Parliament quoted Michel Rocard, a Socialist MEP representing France, as saying, "There is collective anger throughout the Parliament because of the way the directive was handled by the Commission and the Council." The release further interpreted Rocard as saying that MEPs were split 50/50 over the text of the Common Position, but voted to reject the measure in recognition that this disagreement could lead to a rift in the Union were the Directive to be enacted into law. As it stood, stated Rocard, "this legislation is not mature for adoption."

Under the rules of the EP, the rejection of the Common Position permanently defeats the Directive, which now cannot become law.

Pamela Jones - a paralegal, editor of the popular Web site Groklaw, and a widely-respected open-source proponent - characterized the rejection of the SDP as "an unqualified loss for Microsoft and the Patent Club...It’s a victory for Free and Open Source Software [FOSS], not ’open source’ alone, because the Free Software Foundation very much took the lead here, and they are not Open Source. They are about free as in freedom, the freedom to program, to innovate, to see the code, to change it, to share it, to build up a commons of code that any willing to share knowledge can use and extend."

The original Commission directive proposal from 2002 defined "patent" as follows : "A patent protects an invention as delimited by the patent claims which determine the extent of the protection conferred. Thus, the holder of a patent for a computer-implemented invention has the right to prevent third parties from using any software which implements his invention (as defined by the patent claims)." By contrast, the proposal defined "copyright" as protecting the expression of ideas and principles by way of a specific computer program, which could conceivably be any single build from source code.

The evolution of American software patent law is a similarly rocky road. In 1978, the US Supreme Court ruled that computer software was essentially an extension of pre-existing mathematical formulas, and therefore not patentable at all. This ruling was effectively overturned in 1981, when the Court decided that not all software was necessarily mathematical in nature, and not all software was a description of an ordinary business process. Since that time, American patent law has changed greatly, enabling patents of both formulas (under certain qualifications) and business processes, which were formerly considered mere discoveries and not inventions. Current law is based on a 1999 ruling enabling the patenting of algorithms, under the argument that they can restrict software to performing a single purpose, and that this purpose can be considered both novel and an invention.

The defeat of the Software Patents Directive in Europe does not mark the end of the software patents debate there. According to the EP, member nations will continue to issue patents as each nation chooses. The European Patent Office will continue to issue patents as well, although the enforceability of any of those patents has just been rendered negligible, if not non-existent.