Almost eight years in the making, the Computer Implemented Invention Directive (CIID), also known as the EU Software Patent Directive, is still steeped in controversy. Edward Fennell explains.
The sad history of the Computer Implemented Invention Directive (CIID) is an object lesson in what happens when technology advances faster then the law – and the confusion that ensues when legislators make clumsy attempts to catch up.
By the end of November 2004, the situation was as confused as it has ever been. The draft CIID, on the point of going before the European Parliament, had been held back for further work. So what’s new? This is just the latest delay in a long saga of amendment and counteramendment between Parliament and the Council of Ministers.
An uncertain history
The story dates back to 1997 with the first moves by the European Commission to address the EU’s need for a common legal understanding on the patentability of computer implemented inventions (including, for example, computer program-related inventions, intelligent household appliances, engine control devices and machine tools). Although the European Patent Office had been issuing patents for software for many years there was wide inconsistency and many complained that the rights of patent holders were largely unenforceable.
The Commission had begun to focus on the issue in the mid-1990s, but it wasn’t until September 2003 that a draft Directive was presented to Parliament. During the subsequent parliamentary discussions, a series of amendments was incorporated which had the effect of narrowing the scope for patentability, even for inventions outside the field of software. The result was increasingly uncertain wording that proved deeply unsatisfactory to the Council of Ministers.
The irony is that what had started as a long-overdue process of smoothing out inconsistencies had turned into a conflict between the interests of large corporations.
The irony is that what had started as a long-overdue process of smoothing out inconsistencies had turned into a conflict between the interests of large corporations (wanting protection for the inventions that come out of their major R&D investments); and those who want, almost literally, a ‘free-for-all’ so that such software cannot be patented at all. This latter group has banded together as the ‘Open Source’ movement – a movement which has proved to be an effective lobbying operation.
There has also been concern voiced within the European Parliament by MEPs such as Daniel Cohn-Bendit, Co-president of the Greens/EFA, who argues that extending patentabilty to cover further computer-implemented inventions – in the way preferred by the Council of Ministers – will pave the way for ‘the control of the EU’s economy by a small number of multinationals’ – which is, of course, a thinly disguised reference to US interests who register by far the greatest number of patents in this field.
During the course of the past year, the draft has been passed and re-passed between the Council of Ministers and Parliament. Perhaps the point of greatest farce came when, following a decision in May 2004 by the European Trade Ministers to reinstate many of the original Commission proposals rejected by the Parliament, the Lower
House of the Dutch Parliament instructed the Minister of Economic Affairs, Laurens-Jan Brinkhorst, to change the government’s vote from support to abstention. A number of other countries started to waver at this point as well.
By autumn the Directive was still stuck in this dilemma – only deeper. Despite the Dutch move, the Directive was due to return to the European Parliament for a second reading. However, in the last week of September 2004, according to UK law firm Masons, the EU’s Competitiveness Council dropped consideration of the draft from its agenda on the grounds that a fresh look was needed at the translation. Then in mid-November 2004, following a cabinet meeting, the Polish government declared that ‘it could not support the text that was agreed upon by the EU Council on 18 May 2004’. As a result, due to the shortfall in the necessary votes, it became impossible for the EU Council to adopt the proposal as its common position.
So when the Directive will now go to Parliament, in what form and with what outcome, is, at the time of writing, anyone’s guess. A patent demonstration of European gridlock at its worst.
This article first appeared in IP Review, issue 9
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