The Council seeks to legalise software patents with the Community Patent, says Mr Pellegrini, ex-advisor of Michel Rocard, former MEP and rapporteur of the failed software patent directive (french article published in Etoile: François Pellegrini, défenseur des libertés numériques et candidat aux élections européennes):
Comme dans toute organisation polycéphale, l'incohérence est de mise. Par exemple, le Parlement avait voté contre la brevetabilité logicielle en 2005, avec le soutien d'une partie de la Commission (la direction de la Société de l'Information), et contre une autre partie de la Commission (la direction générale du Marché Intérieur dirigée par le commissaire Mac Creevy, très critiqué pour ses positions extrêmement favorables aux grands groupes privés) ainsi que le Conseil (dans lequel règnent les "experts" missionnés par les offices de brevets nationaux). En 2009, rien n'a changé. Le Conseil et une partie de la Commission cherchent à légaliser les brevets logiciels illégalement accordés par l'Office Européen des Brevets (une institution extra-communautaire hors de tout contrôle) au travers de la mise en œuvre du "brevet communautaire" et des règles de brevetabilité qui l'accompagneraient.
Translation in english:
Like in any polycephalic organisation, incoherence happens. For example, the Parliament has voted against the software patent directive in 2005, with the support of a part of the Commission (Directorate General Information Society), and against another part of the Commission (Directorate General Internal Market lead by Commissioner Mc Creevy, heavily criticised for his positions extremely favourable to large private groups) and the Council (in which rules the "experts" of National Patent Offices). In 2009, nothing has changed. The Council and a part of the Commission seeks to legalise software patents illegaly granted by the European Patent Office (an extra-community institution outside of any control) trough the implementation of the "Community Patent" and the substantive patent rules that goes with it.
The ultimate goal of this move is to create central caselaw on software patents by a specialized patent court in Europe. With the recent caselaw of Symbian using ambiguous terms like "technical", it is highly probable that patent judges in a central validity court won't scrap all the software patents illegaly granted by the EPO:
The Court of Appeal in UK has allowed a software patent, possibly setting an important legal precedent. Last week's decision by the Court of Appeal has upheld a previous decision by the High Court that the Intellectual Property Office or IPO's refusal of a patent application by Symbian was not correct in law. The application was for a patent for an indexing system for library functions in an operating system. Accordingly, in considering the "technical effect" of the invention by smartphone OS vendor Symbian, the patent examiner had displayed an excessively "narrow" point of view. The Court of Appeal, under the leadership of Lord Justice Sir Robin Jacob, has thus wished to minimise somewhat the differences due to the so-called "absurd" discrepancies between the IPO and the EPO – the European Patent Office (EPO). The Court also wants to harmonise patenting practice in England and Wales with that on the Continent.
Experts at the European Commission are already saying that the link between this central patent court and the ECJ is important for groups like FFII to have hope in having the caselaw of this future court reviewed by an independent court. There were also proposals in the register of documents in the Council to make the Court of First Instance of the ECJ also specialized in patent law. Mr Judge Jacob is also a very good candidate to be part of the Central Patent Court, he is foreseen as the driver of the bus where all the other specialized patent judges in Europe will sit.
Mr Hartmut Pilch has already said after the rejection of the software patent directive, which was requested by EICTA and other pro-software patent lobby, that the debate will move to the Community Patent:
Question: Does the Community Patent restart the debate over patents for computer-implemented inventions (software patents)? Why or why not?
Answer: Pilch: It restarts the push for software patents, without a debate.[…] The Community Patent plan doesn't even mention the subject of software, although, make no mistake about it, software patentability is one of the main drivers of these plans.
A press article issued by Out-law just after the rejection of the directive also mentions the Community Patent as the next vehicule to validate software patents:
According to the Parliament, the Community Patent has been mentioned by a number of MEPs as the appropriate legislative instrument to address the issue of software patentability.