----

COMMON POSITION (EC) No 20/2005

adopted by the Council on 7 March 2005

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... on the patentability of computer-implemented inventions

(2005/C 144 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

This Directive lays down rules for the patentability of computer-implemented inventions.

Article 2

Definitions

For the purposes of this Directive the following definitions shall apply:

Article 3

Conditions for patentability

In order to be patentable, a computer-implemented invention must be susceptible to industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution.

Article 4

Exclusions from patentability

1.   A computer program as such cannot constitute a patentable invention.

2.   A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs, whether expressed as source code, as object code or in any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable.

Article 5

Form of claims

1.   Member States shall ensure that a computer-implemented invention may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software.

2.   A claim to a computer program, either on its own or on a carrier, shall not be allowed unless that program would, when loaded and executed in a programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1.

Article 6

Relationship with Directive 91/250/EEC

The rights conferred by patents granted for inventions within the scope of this Directive shall not affect acts permitted under Articles 5 and 6 of Directive 91/250/EEC, in particular under the provisions thereof in respect of decompilation and interoperability.

Article 7

Monitoring

The Commission shall monitor the impact of computer-implemented inventions on innovation and competition, both within Europe and internationally, on Community businesses, especially small and medium-sized enterprises, on the open-source community and on electronic commerce.

Article 8

Report on the effects of the Directive

The Commission shall report to the European Parliament and the Council by ... (5) on:

Article 9

Impact review

In the light of the monitoring carried out pursuant to Article 7 and the report to be drawn up pursuant to Article 8, the Commission shall review the impact of this Directive and, where necessary, submit amending proposals to the European Parliament and the Council.

Article 10

Implementation

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (6). They shall forthwith inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive.

Article 11

Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Article 12

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament

The President

...

For the Council

The President

...

----

(1)OJ C 61, 14.3.2003, p. 154.

(2)  Opinion of the European Parliament of 24 September 2003(OJ C 77 E, 26.3.2004, p. 230), Council Common Position of 7 March 2005 and Position of the European parliament of ... (not yet published in the Official Journal).

(3)OJ L 336, 23.12.1994, p. 1.

(4)OJ L 122, 17.5.1991 p. 42. Directive as amended by Directive 93/98/EEC (OJ L 290, 24.11.1993, p. 9).

(5)  Five years after the date of entry into force of this Directive.

(6)  Two years from the date of entry into force of this Directive.

----

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

II.   AIM

III.   COMMON POSITION

Recitals

Articles

Article 1 (Scope)

Article 2 (Definitions)

Article 3 of the Commission proposal (Computer-implemented inventions as a field of technology)

Article 3 (Article 4 of the Commission proposal) (Conditions for patentability)

Article 4 (Exclusions from patentability)

Article 5 (Form of claims)

Article 6 (Relationship with Directive 91/250/EEC)

Article 7 (Monitoring)

Article 8 (Report on the effects of the Directive)

Article 9 of the Council common position (Impact assessment)

Article 10 (Article 9 of the Commission proposal) (Implementation)

Articles 11 (Entry into force) and 12 (Addressees) (Articles 10 and 11 of the Commission proposal)

IV.   EUROPEAN PARLIAMENT AMENDMENTS NOT TAKEN ON BOARD

V.   CONCLUSIONS

----

(1)OJ C 151 E, 25.6.2002, p. 129.

(2)OJ C 61, 14.3.2003, p. 154.

(3)OJ C 77 E, 26.3.2004, p. 230.

----