Tuesday, March 08, 2005

Computer Implemented Inventions get the Green Light in Europe

The EC Commission finally managed to drive its CII Directive through via the European Council of Minister's debate, approved as a Point A item on the agenda yesterday, and after a somewhat late protest made by the Danes to have the item changed to a point B item. The difference between point A and point B as I understand it is that point B items require discussion, whereas point A. Unfortunately for the Danes, who appear to have been left standing in the lurch by the other countries who had initially stated they were going to have second thoughts about the implications of the Directive, they didn't request withdrawal of the CII from the agenda as a point A item, rather requested that it simply be considered as a point B item. It appears then, that the Luxemburg presidency of the Council basically told them to go and learn their EC internal rules guidelines and upheld the item as a point A item. End of discussion. Or is it ?

Although once an item like this has been approved by the Council of Ministers, it still has to go back to Parliament for formal ratification. If the same MEPs that fought to get the Directive changed are still so inclined, it could in theory be possible to get the whole thing thrown out. After all, the European parliament did request that the draft negotation process be started all over again, a request that was refused by the Commission. So will there be a face down between Parliament and the Commission ? - should be interesting to watch ;-)

In the end, it all boils down to who is running the show. Is the EU run democratically ? It doesn't look like it when one sees how legislation like this gets pushed through despite the duly elected MEPs best efforts to accommodate the wishes of their electorate. On the one hand we have MEPs, who, like most politicians are interested in satisfying the largest number of potential voters, and who are elected on that basis, and on the other hand, a Commission, whose members are not publicly elected by the European Union populations, and whose responsibilities are often mingled with their own personal or professional interests despite all attempts to claim impartiality. Yet, it is these very people, and not the MEPs, that devise and create the European legislation we are seeing passed today.

The end result remains to be seen. Will small enterprises be run out of business by large marauding IPR holders ? No doubt this will occur to a certain extent when one sees how such rights are used to levvy pressure and commercial advantage. Will it stimulate patent filings on computer implemented inventions ? Undoubtedly, yes, because there will be the inevitable "me too" syndrome, much like the nuclear warhead proliferation during the 50s and 60s. Does any of this make the situation legally clearer now than it was before ? After all, this was the Commission's stated goal. In my opinion, probably not. The Directive still needs to be implemented in national legislation. This provides opportunities for national governments to bend the Directive in the direction they feel most acceptable to them, and even though they may incur the wrath of the Commission and be subject to fines, many countries take an excruciatingly long time to comply with findings of breach of the Directives they are supposed to implement.

One only has to look at another recent example, the Biotech Directive, where several countries, even though they virtually all voted for it, have refused to implement it, and are now being fined by the EU instances of authority. The French government even went so far as to modify one of the fundamental articles of the Biotech Directive, Article 5, essentially disembowelling it, because the official text didn't fit with its own vision on the subject.

The same will probably happen to the CII directive to a certain extent. What that means is yet more fear, uncertainty and doubt for everyone involved, for a good time to come. In other words, much like the present state of affairs. Swings and roundabouts, as they say...

So basically, when someone asks me now whether a computer implemented invention is patentable, what will I say ? Name me your country and we'll toss a coin ;-)