Edited by Andrej Savin and Jan Trzaskowski
Chapter 7: Software patents and the digital environment
Since the storm of summer 2005, there has been relative calm. The storm was, of course, the unsuccessful attempt by the European Commission to interject itself into the debate on software patents through the proposal for a Directive on Computer Implemented Inventions – an interjection it saw as based upon the need to harmonise the internal market and partly because it resented the independent role of the European Patent Office as an international agency controlling European matters. The proposed Directive met its end in a highly charged and politically contentious manner, as the European Parliament voted 648 to 14 for rejection. The Commission, in the Explanatory Memorandum, had noted the economic urgency needed to resolve issues of what should be properly protected: employment in software production was rising and that ‘each packaged software job creates 2–4 jobs in the downstream economy and 1 job in the upstream economy’. This flowering of wealth generation, they suggested, might be under strain due to the lack of legal certainty in the protection of software by patent: While the statutory provisions setting out the conditions for granting such patents are similar, their application in the case law and the administrative practices of Member States is divergent. There are differences, in particular, between the case law of the Boards of Appeal of the European Patent Office and the courts of Member States.
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