EU Directive on the Patentability of Computer-Implemented InventionsEuropean Union Directive on the Patentability of Computer-Implemented Inventions has become a flashpoint for conflict over the granting of patents over software and business methods.
The directive was initially proposed by the European Commission as a way to codify and harmonise 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.
But 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 economically desirable or required under international law. The FFII and the EuroLinux Alliance played key roles in co-ordinating this campaign.
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. In the next step of the co-decision procedure, the Council of the European Union is working on its position of the text and will send it back to the Parliament which would need an absolute majority for changes and to reject it, unless the re-elected parliament decides to re-start the procedure.
Unfortunately for direct democracy, the Council is essentially comprised of civil servants from natinal ministries of governments rather than elected parliamentarians and the members of the patent working group which works on a common position which the national ministries can adopt are servants from the national patent offices and other pro-patent people. Also the ministries which decide are ministries with strong connection to the juridical world which benefits from software patents.
This means the Council is completely isolated from the grassroots activism of the campaign for limits on patentability, and even further away from the national constituents. The goverments are more atuned to the position of organisations such as the Business Software Alliance (BSA), than the Parliament and the constituents. Letter writing campaigns, coalition building and reinforcement of the scholarly case against unlimited patentability, may nonethless "trickle up" through governments to the Council.