EU seeks 'legally clever' patent definition

Legal experts are to help the European Parliament create watertight criteria for patentability of software

The European Parliament (EP) has enlisted the help of intellectual property lawyers to amend the directive on the patentability of computer-implemented inventions so that companies are prevented from patenting pure software.

The draft software patent directive was adopted in March, despite the EP's request to restart work on the directive. The EP's legal affairs committee (JURI) is now deciding how to amend the directive, before it is passed for a voted to a plenary session of the parliament in July.

Speaking to ZDNet UK on Tuesday, an EP spokesman said that JURI will seek the help of legal experts in a meeting next Monday to ensure that it knows the legal implications of any amendments to the wording of the directive. This is important to ensure that companies cannot patent pure software inventions, said the spokesman.

"The same wording can have two meanings for opposite parties," said the spokesman. "We are trying to find what wording can be chosen to be legally clever."

The ongoing argument over patents in the software industry revolves around the distinction between physical inventions that use software — such as a car braking system — and pure software. Most anti-patent groups accept that the former should be patentable, while they say the latter shouldn't. SMEs, who make up the majority of the industry, oppose the idea of patents on pure software but for some big businesses they are a lucrative proposition.

The lack of legal clarity has meant that companies have been able to patent pure software, even though the original intention of the directive was to prevent this from happening, said the EP spokesman.

"The directive itself says software is not patentable and the European Patent Office says the same, but software patents have been allowed anyway" said the spokesman. "The European Patent Office has problems in taking a decision on whether to allow a patent or not."

The meeting on Monday is open to the public and the EP expects a 'lot of demand' for places, according to the spokesman. It has organised a listening room for those who are unable to get a place within the meeting room.

A number of intellectual-property experts are scheduled to speak at the meeting, including Uma Suthersanen, a senior lecturer in Intellectual Property Law at Queen Mary Intellectual Property Research Institute; Reto Hilty, a director at the Max Planck Institute for Intellectual Property, Competition and Tax Law; François Pellegrini, an associate professor in computer science at ENSEIRB; and Alberto Bercovitz, from the Spanish law firm Estudio Jurídico.

Once the meeting is over, the next step will be for JURI to vote on the proposed amendments in a meeting that will take place on either 6 June or 20 June, according to the EP spokesman.

Last month, the UK Patent Office held a number of workshops to discuss the criteria for deciding whether a patent should be granted. At one of the London workshops, a group of software developers and patent lawyers agreed that the definition of 'technical contribution' in the proposed directive is so vague that almost all software patents are likely to be granted.

The public meeting is taking place on Monday, 23 May, from 1515 to 1700 at the European Parliament building on Rue Wiertz in Brussels.