EC: Software patents will still be granted

Patent offices will continue granting software patents, leading the FFII to consider turning to the courts

The European Commission (EC) warned on Wednesday that patent offices across Europe will continue to grant software patents, despite the European Parliament's decision to reject the Computer Implemented Inventions directive.

The directive was criticised by various trade organisations and open source groups, including UEAPME, a European trade association representing more than 11 million companies; CEA-PME, a trade association that represents more than 500,000 businesses; the Foundation for a Free Information Infrastructure (FFII); and the Free Software Foundation. These groups were concerned that the directive would open the door to the widespread patenting of software, allowing large businesses to shut out competition from SMEs and open source groups.

The rejection of the directive was considered a success by many of these organisations, and a clear sign that software per se should not be patented. But the EC claims the patent directive was only about harmonising the rules on software patents, and that software patents that make a "technical contribution" will still be granted by patent offices.

"The Commission maintains that, without the directive, patents on computerised inventions will continue being granted by national offices and the European Patent Office," said the Commission in a statement. "It [the EPO] does not grant 'software patents' — computer programs per se, algorithms or computer-implemented business methods — that make no technical contribution," said the EC.

Hartmut Pilch, the president of the FFII, said that even if software patents are granted, they may not be valid. "At the moment the granting of software patents is on a shaky legal basis," said Pilch.

The FFII does not yet have an action plan for what it will do next, but may consider challenging some software patents in the law courts.

"People are exhausted, but we are thinking about what next steps might be," said Pilch. "We need to be attacking patents using national laws to move case law in our direction, but this is expensive. It costs around €50,000 (£34,000) for a validation proceeding and could easily go over €100,000."

The FFII reported an income of €172,000 from January to July 2005, so one lawsuit would consume a considerable proportion of the organisation's funding.