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The proposed European Union Directive on the Patentability of Computer-Implemented Inventions has become a major arena for policy conflicts over the granting of patents over software and business methods. The directive was originally drafted to ensure that software patents would be allowed in Europe; its meaning was almost completely inverted by the European Parliament, in order to prevent the patenting of algorithms. Subsequently, the Council of Ministers restored it to its original effect, with a vote that appears to be among the most controversial in EU history. At this stage, the political future of the Directive remains uncertain.
The directive was initially proposed by the European Commission as a way to codify and harmonise the different EU national patent laws and the controversial habit of the European Patent Office of granting software patents under the European Patent Convention. The directive also took on the role of excluding "business methods" from patentability (in contrast with the situation under US law), because there were no strong lobby groups in favour of them and because business methods as such are not patentable under the different European national patent laws and under the European Patent Convention.
The directive catalysed an organised campaign by diverse opponents of software patents, who disagreed with the claims of the patent establishment that software patents were both economically desirable and already mandated by international law. The FFII and the EuroLinux Alliance played key roles in co-ordinating this campaign.
Whether international law mandates software patents is a controversial question. The World Trade Organisation's TRIPS Agreement includes a requirement that:
The only avenue open for completely avoiding a requirement that algorithms be patentable is to define them as being non-technical and thus not in a "field of technology". This distinction is arbitrary but also self-consistent, in that it makes perfect sense to distinguish between "technical" processes and devices (i.e. those tied to the physical world) and informational or mathematical processes which have no necessary connection to physics. Because the "field of technology" requirement in TRIPs had its origins in European patent laws, Europe is, in legal terms, free to take steps to define the concept either in a broad or narrow way.
In September 2003, the European Parliament finally passed the directive, in a heavily amended form , which would place significant limits on the patentability of software. The most significant changes included: a definition of the "technicity" requirement for patentability which distinguishes between abstract information-processing processes and specific kinds of physical processes (only the latter are "technical"); and a blanket rule that patents cannot be used to prevent interoperability between computer systems.
The Parliament's amendments were a major defeat for the directive's original proponents. Rather than being a confirmation of the global practice of granting software patents, the directive had placed real and substantial limits on patentability.
Under the co-decision procedure, the Council of the European Union (or Council of Ministers) could have withdrawn the proposal, or sent it back to the Parliament, possibly in a modified form. In the event, on 18 May 2004, the Council agreed in an advisory vote to resubmit what was described as a compromise version of the proposal. On closer examination, the agreed version once again permitted widespread patenting of software, and effectively overturned the Parliament's amendments.
The Council has yet to formally approve this resolution, and opponents are lobbying at European and National level to prevent this. If approved by the Council, the revised proposal will be resubmitted to the Parliament, which will only be able to overturn it by an absolute majority of members (rather than a majority of members present and voting).
The Committee of Permanent Representatives which assists and advises the Council is comprised of civil servants from national ministries of governments rather than elected parliamentarians. Furthermore, the members of the patent working group which works on a common position which the national ministries can adopt are civil servants from the national patent offices and other pro-patent people. Finally, the ministries which decide are those with strong connection to the juridical world, which benefits from software patents.
This means the Council is less aware of the concerns of those (such as academics, and individual and small to medium software developers) who advocate limits on patentability. It is also fairly isolated from national constituencies. Governments tend to be more attuned to the concerns of organisations such as the Business Software Alliance (BSA), than those of the Parliament or constituents.
Letter writing campaigns, coalition building and reinforcement of the scholarly case against unlimited patentability, may nonetheless "trickle up" through governments to the Council.
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