Unintended consequences

Author: Geoff Dallimore, Chartered Patent Attorney

A recent vote in the European Parliament rejected the proposed Directive of the European Parliament and of the Council on the Patentability of Computer-implemented Inventions (CII). In doing so, the European Parliament may have unintentionally supported big businesses over individuals or SMEs.

In its final draft, the Directive would have placed several restrictions on patenting computer programs compared to the current position throughout Europe. More importantly, it would have ensured consistency of approach to the examination and grant of such patents, by patent offices throughout Europe. The European Parliament's decision to throw out the Directive results in the maintenance of a status quo in which there is little legal certainty over the usefulness of patents involving computer programs. A lack of legal certainty usually favours those with more money to spend.

The rejected draft of the Directive was the result of intense lobbying of the European Parliament. At the root of the protests against the CII by various lobby groups appears to be a fear that patents for computer programs might be allowed in Europe - when in fact they already are. Groups such as the Foundation for a Free Information Infrastructure (the FFII) lobbied hard to persuade the European Parliament that patents on computer programs were a significant threat to SME's and that this Directive should be used to prevent any patents involving software from being granted. Whether this was a wilful misrepresentation of the present position in Europe or a genuine ignorance of it remains open to question.

Nevertheless, the open-source community's position was completely at odds with the original purpose of the Directive as suggested by the European Council who felt that limited protection on computer programs was important to the economy, provided that there was clarity and consistency across Europe. The Directive was therefore intended to codify and clarify the current situation, not to substantially alter it. For example, there was never any realistic prospect of the European patent system being opened up to non-technical business methods such as might be patented under current US patent practice. It is therefore no surprise that a massive majority of the European Parliament chose to reject the Directive once the lobbyists succeeded in persuading a few groups in Parliament to introduce amendments that would have severely reduced the level of protection afforded to computer programs compared to the current situation.

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