Software patent campaigners have reacted with surprise to an apparent change in the European Commission's stance on those patents.
The Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation and that the European Patent Office will be bound by this law.
"The EPO would...apply and be bound by a new unitary Community law with respect to Community patents," the Commission said 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, may be invalidated in a relevant court proceeding."
This statement appears to contradict one made by the EC last year, when it said 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. That directive would have widened the extent to which software could be patented.
The Foundation for a Free Information Infrastructure, which has doggedly campaigned against software patents in Europe, was confused at the change of tune.
"I'm stunned," Pieter Hintjens, the president of the FFII, said Wednesday. "Does the Commission now accept that the EPC (European Patent Convention) rules do actually rule? Or have I misunderstood something?"
In the past, campaigners have expressed concerns that the Community Patent legislation would be used by the Commission to legalise software patents.
The EC statement last week was made in response to a question posed by a Polish member of the European Parliament, 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 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," Gierek said in his question. "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, that would not be enough, Hintjens said. The patent office should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice, he said.
"The proposed Community Patents will be granted by the EPO--a nonaccountable, non-Community organisation--with no independent appeal possible. The Commission says this is not a problem, since the (European Court of Justice) can invalidate the granted patents in infringement cases," Hintjens said.
"That is, however, only true if it comes to civil litigation, which is often too expensive for (smaller companies), forcing them to pay for a license. 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.
Ingrid Marson of ZDNet UK reported from London.