European Commission answer to P-010463-12
In 2012, MEP Adam Gierek submitted a question ("P-010463-12") to the European Commission.
The EC's answer (January 2013) seems to be its most concrete affirmation yet that it does not consider software patents to be valid. The third paragraph in particular.
Or, a more cynical reading is that the EC doesn't think "software patents" can cover standards, but they omit to mention that they think other patents could cover software standards, but they just don't call these "software patents" (they call them "computer-implemented inventions" or something else).
In any case, this could be quoted in submissions to consultations or court cases. The cynical reading is very slippery and isn't likely to be appreciated by a judge.
The question
The intellectual property rights associated with ICT standards can apply to patents covering computer programmes granted by the patent offices of some non‐European countries, for instance the USA. The application of these standards on the basis of the FRAND (fair, reasonable and non‐discriminatory) obligation may require the purchase of licences for patents not recognised in EU Member States.
Is it not the case that these standards will act as a sort of first step towards the EU's formal recognition of software patents?
The EC's answer
European Standards do not act as a first step towards the recognition of software patents. In the EU, programs for computers are not regarded as inventions and are thus generally not patentable1.
European ICT standards are used worldwide. This allows industry, including EU firms to achieve economies of scale and enter international markets more easily.
Conversely, patents are valid only in a defined territory. In the US, contrary to the EU, software is patentable. If a standard includes a technology covered by a software patent in the US, the implementer of such a standard will need to license it to sell products in the US. If the implementer wishes to market in Europe, no such licence will be required.
Industry selects the technologies included in standards. It may lead to inclusion of technologies protected by software patents in the US, but not in Europe.
These patents, like any other relevant patents2, need to be declared before the conclusion of the standard. Industry is then able to take informed decisions to include or not technologies protected by software patents in the US.
The Commission ensures that standardisation participants can take decisions with the best possible knowledge of the technology availability included in the standards. The Commission announced in the latest industrial policy communication3, the intention to check if the current licensing conditions may require policy adjustments.
In the bilateral discussions with the US, the Commission has reiterated Europe's position that software is not patentable. The debate is on-going in the US on the pros and cons of software patents. Ultimately, it will be up to the US legislator to see if they believe changes to their legislation are necessary.
(1) According to Article 52(3), of the European Patent Convention (EPC); This EPC article defines the scope of the patentable subject matter. In the proposal on the Unitary Patent Protection, there are also no plans to change the patentable subject matter.
(2) According to Intellectual Property Rights rules of the European Telecommunications Standardisation Institute and of many standardisations bodies (including ITU-T, IEEE, etc.) patent essential to the implementation
(3) "The Commission will consider measures that can contribute to increase transparency and improve the treatment of IPR in standardisation." http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0582:FIN:EN:PDF COM(2012) 582 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions "A Stronger European Industry for Growth and Economic Recovery, Industrial Policy Communication Update" page 20
The document can be found on the EC's website by looking at the question and clicking "Answer(s)". You may have to save the document to your computer and then open it in a word processor (such as LibreOffice). If you find a direct link, please add it here. Thanks.
