Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.
The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."
This statement appears to contradict what the EC said last year — that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive.
The Foundation for a Free Information Infrastructure (FFII), which has doggedly campaigned against software patents in Europe, was confused at the EC's change of tune.
"I'm stunned," said Pieter Hintjens, the president of the FFII on Wednesday. "Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"
In the past, software patent campaigners have expressed concerns that the Community Patent legislation would be used by the EC to legalise software patents.
The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.
"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.
"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.
"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.
Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.