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Software Patents in Europe: A Short Overview

A patent is a right to monopolize an invention.

A the applicant of a patent specifies a scope of activities from which he wants to exclude others (the claims), and submits it to the Patent Office (applying for a patent), which evaluates whether these claims depict an invention within the sense of the law and whether the invention is correctly disclosed and industrially applicable (formal examination).

In addition, Patent offices have to examine whether the invention is new and non-obvious (substantive examination). However the non-obviousness standard is very low world-wide, in the EU like in the US.

If the application passes the examination, the Patent Office grants the patent which means that the applicant gets the right to forbid others to do what is destribed in the claims of the granted patent.

The common patent law in Europe is the European Patent Convention (EPC) from 1973.

In it's Article 52, it states states:

So programs for computers are excluded from patentability, together with many nother fields which where is makes sense to not have patents for.

In 1986, the European Patent Office (EPO) started granting patents on computer programs nonetheless.

Today, the number of software patents granted by the EPO is estimated to be abouve than 30.000, and is increasing at a rate of 3,000 per year.

In 1997, the patent establishment surrounding the EPO began attempting to rewrite the EPO to make their practice of granting patents on software legal.

In August 2000, the European Patent Organisation, intergovernmental organisation that runs the EPO, attempted to delete all the exclusion of computer programs from the EPC, but failed due to public resistance.

In 2002, the European Commission submitted a proposal 2002/0047 for a Directive "on the patentability of computer-implemented inventions." The Directive was claimed to serve the purposes of harmonizing Member State laws and clarifying some details in order to prevent excesses by the EPO. However, a closer reading of the misleading phrasing and terminology in the Directive reveals that the proposal would codify unlimited patentability, as practiced by the EPO.

Representatives of small and medium-sized enterprises and activists from all across Europe, coordinated by the FFII undertook intensive lobbying.

In September 2003, the European Parliament voted incorporated a set of amendments into the Directive clarified the non-patentability of programming and business logic.

Within the Council, the "Working Party on Intellectual Property (Patents)" which consists of exactly the same members as the Administrative Council of the EPO: patent office administrators from the national governments. After a few months of secret negotiations, the Working Party produced a "compromise document" that eliminated all the Parliament's clarifying amendments, reinstated the Commission's proposal which would make computer programs patentable.

On May 18 2004, in a meeting of the Council a few cosmetic amendments which do not change the text were added and the resulting text was adoped by the Council. It has been sent to European Parliament for 2nd reading.

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