The European Parliament dealt a blow to programmers seeking clarity on the patentability of computer-implemented inventions last month when it rejected a draft European Directive on the subject (the "CII Directive") by an overwhelming majority. So where does that leave European programmers and software investors?
The CII Directive was intended to achieve three things: to harmonise the laws of the European Union ("EU") member states, to clarify uncertainties in the details of the law in this area, and to bring the European Court into the legislative process thus providing one central authoritative body. Throughout the life of the CII Directive these objectives remained the same, and were subject to very little criticism. Concerns were raised about the wording of the CII Directive, on the basis that whilst having the law crystallised would provide greater certainty, if the law itself was badly drafted this would cause greater problems than had previously been encountered.
Without the CII Directive to crystallise and harmonise the law across Europe, patent laws in the EU members states remain unchanged and the day-to-day application of national and international patent laws to computer programs and computer-implemented inventions in each country is left in the hands of that country's national courts and patent offices.
In the UK, patent law is shaped by three principal documents: our domestic Patents Act 1977, the European Patent Convention 1973 ("EPC"), and the international Agreement on Trade-related Aspects of Intellectual Property Rights 1994 ("TRIPS Agreement"). In accordance with the Patents Act and EPC, in the UK it is possible to obtain patent protection for computer-implemented inventions, but not (at least according to the letter of the law) for computer programs as such. This has been the position since the early Seventies, although the application of the law by our courts and patent office, as well as influence from external sources, have meant that the whilst the letter of the law has remained unchanged, the meaning has gradually been inching closer and closer to allowing for the patenting of software.
One example of this dilution of the strict meaning of UK law was the shift caused by the signing of the TRIPS Agreement. Prior to that, the approach under the Patents Act and the EPC was that computer programs per se were not patentable under any circumstances, however inventions that would otherwise have been patentable should not be excluded from protection simply because the inventor chose to make use of modern technology as part of the invention. The introduction of the TRIPS Agreement added a new dimension to our patent laws. The TRIPS Agreement did not exclude computer programs from patentability at all, but rather stated that "any invention" could be patented if it met the usual requirements of novelty, inventiveness and industrial applicability.
The approaches taken by the USA and Japan, both of which are TRIPS contracting states, were also much more favourable towards patenting software-related inventions. Even within the EU, the approaches were very variable, so that certain computer-implemented inventions were capable of achieving protection in some EU member states but not in others. This uncertain and inconsistent situation was extremely unsatisfactory to anyone investing in software development and seeking to protect that software or computer-implemented invention across the EU. It was as a result of this dissatisfaction that it was decided that the patent laws of the EU member states ought to be harmonised in their application to computer-implemented inventions and software. This in turn led to the introduction of the draft CII Directive, and the start of over 5 years of debate.
The work on the CII Directive was largely focussed on the problem of finding the line between inventions with some aspect of their implementation being performed by a computer, and inventions consisting purely of computer programs. This work was often side-lined by the lobbying activities of parties concerned that the CII Directive was intended to allow for the patenting of software and, if enacted, would prove to be a barrier to software innovation. It was this concern that appears to have caused the CII Directive to be rejected by such overwhelming numbers in the European Parliament.
The rejection of the CII Directive leaves the law in the UK and the EU unchanged, but it also leaves the position regarding the precise application of that law in each EU member state uncertain. What has been lost with the CII Directive is the opportunity to gain greater clarity of the law and, with it, greater certainty about the ways in which computer-implemented inventions and similar intellectual property assets can be protected across the EU. This continued uncertainty is likely to cause discomfort in the software development market, and could add to the rejection of the EU as a preferred forum for research and development investment by the larger software developers in favour of territories such as the USA and Japan. We can only hope that the lengthy debate surrounding the CII Directive has gone some way to providing guidance as to the spirit in which the current law should be interpreted, thus achieving greater certainty. Until such time as certainty can be achieved in the UK with the authority of codified laws, the protection of software and computer-implemented inventions remains on very shaky ground.
Ayesha Bramwell is a solicitor with commercial law firm Shepherd and Wedderburn. 020 7429 4923.