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Brussels, 20th February 2002

Patents: Commission proposes rules for inventions using software

The European Commission has presented a proposal for a Directive on the protection by patents of computer-implemented inventions. The proposed Directive would harmonise the way in which national patent laws deal with inventions using software. Such inventions can already be patented by applying to either the European Patent Office (EPO) or the national patent offices of the Member States, but the detailed conditions for patentability may vary. A significant barrier to trade in patented products within the Internal Market exists as long as certain inventions can be protected by patent in some Member States but not others. The proposed Directive will be submitted to the EU's Council of Ministers and the European Parliament for adoption under the so-called 'co-decision' procedure.

"European industry needs a legal environment that encourages innovation without stifling competition. We need certainty over what can, and cannot, be patented", said Internal Market Commissioner Frits Bolkestein. "The proposed Directive would provide this certainty by making the conditions for patentability of computer-implemented inventions clear and uniform. Current law on this question was drafted in the early 1970s when there was no inkling of what was to come in the shape of modern computers and networks, not to mention the emergence of a software industry worth billions of euros. The courts have done their best to develop the law in response to the changing environment, but there is now no alternative to legislation at European level to prevent potentially divergent interpretations by the courts."

Information Society and Enterprise Commissioner Erkki Liikanen said "the proposal for a Directive is an important step towards ensuring that patents for inventions containing software will truly contribute to the aim of fostering innovation". "It would help all those involved to keep the scope and quality of patents at a proper level. It represents a reasonable middle ground in a field where dissenting views had been voiced".

The Commission's proposal is based on existing practice and seeks to allow those who develop new computer-implemented inventions to profit justly from their work. Patents are an incentive to invest time and capital. At the same time, the proposal aims to avoid stifling competition, hampering small businesses or preventing the development of interoperable software.

The proposal achieves this balance by distinguishing between different types of inventions. Those whose operation involves the use of a computer program and which make a "technical contribution"- in other words which contribute to the "state of the art" in the technical field concerned - would be eligible for patents.

Computer programs as such would not be eligible for a patent under the proposal. Nor would business methods that employ existing technological ideas and apply them to, for example, e-commerce. These would continue where appropriate to be covered by copyright law or the law of confidentiality. Patents and copyright are complementary tools for the protection of intellectual property. In very broad terms, the distinction in the field of information technology is that copyright protects original computer programs (including instruction manuals) against unauthorised copying, while patents on the other hand can be used to protect underlying technical ideas and principles.

The Commission's proposal follows extensive consultations since 1997. Most recently, a discussion document posted on the Internet in October 2000 led to 1447 responses.

Technical contribution

The proposal takes as its basis the concept of "technical contribution" as an essential requirement of any patentable invention. This approach is consistent with the case law developed over the years in the EPO and the Member States. It implies that a computer-implemented invention which makes a "technical contribution" to the state of the art, which would not be obvious to a person of normal skill in the field concerned, is more than just a computer program "as such" and can therefore be patented.

The requirement for a "technical contribution" is fully consistent with the European Patent Convention and the EU's wider international obligations. Such a requirement for a "technical contribution" has been established in case law. The proposed Directive, by creating transparency and legal certainty, would create an environment in which innovation could be most effectively protected and fostered. At the same time, it would put beyond doubt that creations in which the innovative element is not technical in nature, that is to say which make no technical contribution, cannot be patented. The proposal thus addresses concerns that EU patent law might in future be extended to cover fields of human endeavour which have up to now been excluded, in particular business methods and mathematical entities or logical constructs having no relation to the physical world.

Actual cases in which a "technical contribution" has been found include:

  • an invention in which an X-ray apparatus was controlled by a data processing unit in a way which provided an optimum balance between potentially conflicting operational requirements

  • an invention in which an increase in processing speed in a computer was achieved by a new and non-obvious method

  • an invention concerned with communication between independent systems which involved a stage of activities requiring the use of technical skills (beyond those expected of a computer programmer) to be carried out before actual programming could start.

On the other hand, any invention that was concerned solely with the nature of data or the way in which a particular application operated on data would not make a technical contribution and so could not be protected by a patent. The mere computerisation of a method or technique that was already known, or the computer implementation of a business or similar method (such as a new mathematical model for tracking movements of the stock market) would not qualify as patentable inventions either.

According to the proposal, a patent would normally cover inventive concepts and principles that underlie particular components of a software program. Just like a complex piece of physical machinery such as a car or a refrigerator, a software application may depend on its proper functioning on many different components, only some of which could be patented. This is an important distinction with copyright law. While copyright protects the entire code of an operating system, game or piece of business software against unauthorised copying, distribution and use, a patent would cover only the specifically-patented components.

'Isolated' programs would not qualify

The proposal would not allow patents to be granted for computer programs on their own, i.e. in isolation from a machine on which they may be run. This marks a different approach to the direction taken until now by the EPO and some case law in Member States. The proposal therefore reflects concerns that if 'isolated' computer programs could be patented, this would blur the distinction between the scope of copyright and patent protection, and that if enforced, patents including such claims could be used to prevent "reverse engineering" and other activities considered legitimate in respect of computer programs already protected under copyright law.

The proposal would require the Commission to monitor the impact of computer-implemented inventions and to report to the Parliament and the Council on the operation of the Directive within three years of its implementation by Member States. This provides an important safeguard which would allow any necessary adjustments to be made.

Legal relationship with the EPO

The Directive would have no direct legal effect on the European Patent Office. However, once the Directive was implemented, the Commission would consider taking action to resolve any inconsistencies in the context of the European Patent Convention. This has already been done on a previous occasion (with the Biotechnology Patents Directive 98/44/EC), with no particular difficulty. In any case, European Patents, once granted, become subject to national laws, so any patents granted after the Directive took effect and which were inconsistent with its provisions would need to be amended to bring them into conformity (or be revoked).

For further information concerning the proposal, see MEMO/02/32.

The full text of the proposal is available on the Europa website:

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