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Autumn 2003
The debate continues on European proposals regarding the finalisation
of a directive on software patents (the "Software Patent Directive").
On September 24 2003 the European Parliament voted in favour of
software patents, but also passed certain crucial changes to the
text of the Software Patent Directive. The key focus of the debate
in Parliament was to ensure that there was no protection of "pure
software" by means of patent, which the Parliament considers
as bad practice.
Under the European Patent Convention (EPC) regime (and also Irish
law), for a patent to obtain protection, it must be new, be capable
of industrial application and be inventive. Furthermore the protection
of software by patent is specifically excluded from the EPC and
Irish legislation. Despite this, up to 30,000 patents in respect
of computer related inventions have been granted by the European
Patent Office (EPO). This arises, as the EPO grants patent protection
to software related inventions where the invention demonstrates
a "technical effect." For example software patents have
been granted by the EPO where a computer program was used to alert
machine operators when a worn tool needed to be replaced. Parliament
was keen to mirror the EPO's practice in the Software Patent Directive
and not allow the introduction of a liberal software patent regime
in the EU (as exists, for example, in the US). One of the amendments
is illustrative of the Parliament's approach where they insisted
in introducing a new Article 4(a) which provides that "a computer-implemented
invention shall not be regarded as making a technical contribution,
merely because it involves the use of a computer, network or other
programmable apparatus". The Software Patent Directive will
now be considered by the Council of Ministers on 10 November 2003,
and will then return to the Parliament for second reading.
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