The Point was Lost Yonks Ago (Score 1)

The patent law of most European countries, both EU and non-EU, is underpinned by the European Patent Convention (EPC). The EPC also created the European Patent Office (EPO) which enables separate patents for multiple European countries to be obtained through a single application process. Thus, the current UK, German, French, Dutch, Hungarian etc. law on what is patentable is intended to have the same effect as the corresponding provisions of the EPC, which are applied directly by the EPO.

However, there has been a tendency for each country's courts to interpret these provisions differently from those of the other countries and the Boards of Appeal of the European Patent Office (EPO). The Commission came to the view that this lack of harmony was incompatible with the single market. This is stated explicitly in articles 2 and 3 of the draft directive:

(2) Differences exist in the protection of computer-implemented inventions offered by the administrative practices and the case law of the different Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market.

(3) Such differences have developed and could become greater as Member States adopt new and different administrative practices, or where national case law interpreting the current legislation evolves differently.

The aim of the Directive was to harmonise the jurisprudence of the EU member states with that of the Boards of Appeal of the EPO. In effect, the Directive would force courts to interpret the issue of technical contribution in line with the content of the Directive instead of by applying tests that the individual national courts had devised.

There was no intention of changing the substantive law and it is doubtful that the EU could do this because the law on patentability is derived from the EPC, to which non-EU states, including Switzerland, Bulgaria, Iceland, Turkey and Romania, are parties, with a leavening from TRIPS.

The promulgation of the Directive on the patentability of computer-implemented inventions was never going to be the correct forum for preventing "software patents". The horse had already bolted when the EPC and TRIPS treaties were negotiated. The scope of the Directive was far too limited and the power of the EU to change substantive patent law too circumscribed by these other treaties.