I have been surprised by the coverage given to a small comment by a member of the EU Commission with regards to a question with regards to software patents. The full answer from the Commission can be found here. Most of the press reports are inaccurate, as usual. Yours truly will endeavour to cut through the falsehoods to get to the heart of the story.

For those unfamiliar with the intricacies of the European software patent debate, computer programs as such are not patentable subject matter in the EU, but the Board of Appeals of the European Patent Office (EPO) has repeatedly ruled that software which has a technical effect can be an invention, and therefore patentable. Many of the press reports have stated that the EPO Board of Appeals rulings with regards to software patents are not binding to member states of the EU. To me this is obvious because the EPO is NOT an EU institution, and the EPO board of Appeals rulings are binding only to the EPO. However, the Office’s practice has been applied in several national cases, particularly by courts in the UK.

As far as I can decipher the comment by the European Commission, the status quo would not change with the establishment of a European Community Patent. There is a new European Regulation being discussed that will create a “Community Patent”, but this new figure will be administered by the EPO. In my opinion, the new regulation would mostly “legitimise” the status of the EPO, it does not work against the existing system, but parallel to it. One of the important provisions of the existing Patent Convention (the one that gives power to the EPO), is that it has a provision which excludes patentability on some Fields of endeavour, software included (Article 52). From the comment, the Commission is only stating that the existing exclusion will be carried into the Community Patent Regulation. This was already on the cards as far as I’m aware, so I’m a bit surprised by all the excitement.


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