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A directive which has become necessary
Nowadays, computer implemented inventions are found in most objects of everyday life: washing machines, televisions, microwaves, mobile phones, etc... These computer implemented inventions, as it was underlined by the European Commissioner Frits Bolkenstein, now make up for 15% of all patent applications. The patentability of software, meaning computer programmes, is to this day forbidden in the U.E. by a European Patent Convention dating back to 1972. The European Patent Office (E.P.O.) as well as national patent offices have nonetheless already granted 30.000 patents for computer implemented inventions and the technical contributions they represent. This practice being largely widespread nowadays, it has become urgent to clearly define it with a legislative text, since the limits between software and computer implemented inventions are not clear. The draft report proposed by the European Commission aims in specifying what is patentable and what is not, and to avoid American and Japanese drifts, namely the exponential progression of the granting of patents for these products. The purpose of the text is moreover, according to Mr. Bolkenstein, "to harmonize Community legislation in the light of the existing situation". In the absence of such a harmonization, "the situation would become even more unclear, uncertainty would become a common factor among inventors and the patentability of pure software would not even be guaranteed".

Exclude pure software from patents
The draft directive caused many controversies. For its detractors, it leads the way to the possibility of patenting pure software, a unanimously condemned practice, since these programmes should not be considered as inventions. According to the E.M.P. Michel Rocard (P.E.S., F), advisory draftsman of the Culture Committee of the European Parliament, these are in fact "a mere entity of mathematical formulas" and "the creation of a new software sometimes uses several hundreds of existing software". The granting of a patent for these "algorithms", which are furthermore protected by copyright laws, "would slow down this proliferation and thus, the progression of know how which will more frequently take the form of a software". But Brussels pledges that: the directive does not introduce the patentability of software and "will not have the devastating effects as foreseen by some". On the contrary, it is a matter of taking a "careful step to restrict existing legislation". This conviction is shared by Arlene Mac Carthy (P.E.S., North West), rapporteur on this issue. According to the British M.E.P. the Commission’s proposal "does not include any new phenomenon". It is furthermore essential to prevent "bad patents", such as those which were laid down regarding commercial methods such as the "one click purchasing methods "Amazon""which is detrimental to innovation and competition. Contrary to the allegations of some, Mrs. Mac Carthy moreover stated that many small and medium sized enterprises would welcome a legislative text as a framework to the granting of patents for computer implemented inventions, in order to render their research and investments profitable. Indeed, these inventions are sometimes the fruit of 10 to 15 years of work, and their patentability makes it possible to prohibit their use without remuneration. However, the rapporteur specified that the proposal for a directive was amended in order to prevent the possibility of patenting pure software. The lodged amendments must also make it possible for small and medium sized enterprises to purchase patents at an affordable price and to avoid the creation of monopolies.

The criteria of a patentable computer implemented inventions
More than any thing else, the members of Parliament attempted to clarify the text of the European Commission with their amendments. They thus defined a computer implemented invention as any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having in its implementation one or more non-technical features which are realised wholly or partly by a computer programme. To be patentable, the computer implemented invention must have a technical character. It must furthermore be new, non-obvious and susceptible of industrial application. In addition, the M.E.P.s specified that it must have a contribution to the "state of the art" and not be a creation of the mind, which as far as the latter is concerned, depends on copyright. Thus, computer implemented inventions, which implement commercial methods, mathematics or more generally not producing technical effects, must be excluded from the patentable subject-matter. Finally, according to the amended text, the patent must only cover the technical contribution and not the software used within the framework of the invention. M.E.P.s, in particular those of the liberal group, also requested the Commission to include in the draft directive a provision for a "grace period" prior to the date of application, and during which the elements put forth by the applicant of the patent will not be considered as part of the technical aspect. This period will give time for the inventor to evaluate the market’s interest in his or her invention, without having to be deprived of it. The finally adopted text, with 361 in favour, 157 against and 28 abstentions, must once more be discussed before the Council of Ministers and then return in second reading in front of the European Parliament. The next debates are expected to be rowdy, Brussels having already set forth that it would not accept certain amendments. On their part, big groups are carrying out a ferocious lobbying campaign on the European executive to defend their share of the cake. "In ten years of mandate, I have never experienced such a harassing campaign with such aggressiveness" declared the rapporteur Arlene MacCarthy at the end of the debate.

Traduction by Benoît Répessé