Select Committee on European Scrutiny Forty-First Report




COM(02) 92

Draft Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions.

Legal base:Article 95; co-decision; qualified majority voting
Department:Trade and Industry
Basis of consideration:Minister's letter of 30 October 2002
Previous Committee Report:HC 152-xxxv (2001-02), paragraph 11 (3 July 2002)
To be discussed in Council:14-15 November 2002
Committee's assessment:Politically important
Committee's decision:Cleared


  14.1  We considered the draft Directive on the patentability of computer-implemented inventions on 3 July. We noted that consultation carried out by the Commission had found that there were sharp divisions between those who wished to see strict limits or a complete ban on software patents, and those who supported harmonisation at more or less the status quo, as defined by the current practice and jurisprudence of the European Patent Office (EPO).

  14.2  We noted the Commission's conclusion that the balance of advantage lay with harmonisation on the basis of existing EPO practice and with making the conditions of patentability more transparent. We also noted that the Government's own consultation had reached the conclusion that software should not be patentable where there was no technological innovation, but that such innovations should not cease to be patentable merely because the innovation lay in software. The consultation also showed a need for the law to express this more clearly. In relation to the draft Directive, we noted that the Government would be consulting on how far the proposal met these objectives, and asked the Government to provide an analysis of the responses to the consultation.

The Minister's reply

  14.3  In her letter of 30 October the Parliamentary Under-Secretary of State for Competition, Consumers and Markets (Miss Melanie Johnson) provides a report on the comments made on the draft Directive. The Minister explains that of those who offered views on the draft Directive, all welcomed the aim of setting out and clarifying the status quo, which they recognised as being also the Government's position.

  14.4  The Minister nevertheless points out that some consultees considered that the proposal could be made clearer and saw a need for an unambiguous exclusion from patentability of business methods implemented in a technically routine way. The Minister also refers to the concern expressed by some consultees that to exclude patent claims for computer program products either on their own or on a carrier, such as a floppy disk or CD Rom, might conflict with existing practice in Europe. These consultees argue that such an exclusion would increase complexity and disadvantage European industry by making it harder for patent-holders to assert patent rights, because such patent-holders would only be able to sue suppliers of infringing software for contributory, rather than direct, infringement[25].

  14.5  The Minister remarks that the Government has noted the concerns of respondents, including the desire for an explicit statement of what is not capable of patent protection.


  14.6  We thank the Minister for her report on the results of the consultation she has conducted. We note that the consultees all support the aim of the Directive in setting out the current status quo on patentability, and that this is in accordance with the view of the Government.

  14.7  We have no further questions to put to the Minister, and we clear the document.

25  Producers of software programs might still enjoy copyright protection against any unauthorised reproduction or use of their programs. They would not, however, obtain protection for the invention or idea expressed in the program. Back

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Prepared 25 November 2002