The European Commission has issued a draft directive on the patentability of computer implemented inventions following a period of consultation. Following the consultation exercise, the EC has recognised that changes must be made to the law on patents for computer programs. The EC's stated objective is the harmonisation of protection for computer software to provide an incentive for European companies, and in particular smaller companies, to use patents in order to fully exploit the computer software. The EC has identified that its objectives cannot be achieved at national level and the case law and administrative practices of member states in relation to computer software has been divergent for many years.
The directive has been much anticipated and there has been overwhelming support for clarification of this complex and ambiguous area of intellectual property law.
Patents are important weapons in the corporate arsenal, providing a monopoly right to prevent anyone other than the owner from exploiting an invention for a period of 20 years without the owner's consent. As well as providing this monopoly, patents are able to act as an incentive for companies to invest time and capital into the inventive process and this in turn assists in the development of new technological processes in a wide variety of fields.
The problem with obtaining patents for computer programs stems from the inadequacy of the current patent legislation to deal with the advances and realities of the new information society. The European Patent Convention (EPC) and individual member states legislation expressly excludes from patentability computer programs "as such".
Despite this exclusion, the Patents Office has recognised that certain computer programs are worthy of patent protection and have adopted a flexible approach. The Patents Office has side-stepped the exclusion in certain cases by determining that the application does not relate to the software programme "as such" but relates to a computer - implemented invention which is patentable due to its "technical character" (ie. Belonging to a field of technology). In determining what computer implemented inventions have a technical character, recent case law suggests that all programs when run on a computer are by definition technical by virtue of arising from a machine. The European Patent Office and National Patents Offices using this reasoning have granted thousands of patents.
The situation has been...