It appears that the European Commission has had a sudden change of heart on the issue of software patents. In its response (Microsoft Word document) yesterday to a question posed by a Polish European Parliament member, the EC said that the European Patent Office would not grant any more software patents and that any patents that have already been granted may now be challenged and overturned in court.

The EPO Patent Office would thus actually apply and be bound by a new unitary Community law with respect to Community patents. Indeed, an important feature of the proposed Community patent system is the accession of the Community to the EPC. Moreover, with respect to the particular cases mentioned by the Honourable Member, the draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding.

The issue of software patents has been a hot one in Europe over the past couple of years. Originally introduced into the European Parliament in May 2004, the software patent directive came under heavy fire from open source advocates and other groups opposed to the idea of granting patents for software. At the time of the directive's introduction, the European Patent Convention barred the patenting of software. Despite that, a few patents had been granted as the result of lawsuits.

Backed by the likes of Apple, Microsoft, IBM, and HP, the patent directive followed a bumpy course in and around the European Parliament, seemingly approved at one point and shot down at another. After the European Parliament rejected the software patent directive last July in a 648-14 vote, the EC decided to go ahead with its original plan anyway, and grant patents that made a "technical contribution":

"The Commission maintains that, without the directive, patents on computerised inventions will continue being granted by national offices and the European Patent Office," said the Commission in a statement. "It [the EPO] does not grant 'software patents'  computer programs per se, algorithms or computer-implemented business methods  that make no technical contribution," said the EC.

That decision cheered industry groups such as the European Information and Communications Technology Association, which believes that software patents are necessary to protect their innovations and keep them from being pilfered by others.

The Foundation for a Free Information Infrastructure (FFII), which has emerged as one of the leading voices against software patents, has said that the EC's apparent change of heart doesn't go far enough. The FFII would like to see an independent appeals process set up to deal with software patents that have already been granted. The group believes it would make challenging patents simpler and less costly than under the current system, which requires a lawsuit to be filed with the European Court of Justice.

The FFII is also disturbed by a patent recently granted to Microsoft, saying that it shows that the EC may not yet be ready to give up the software patent fight. In that case, the EPO said that once a program is run on a computer, it becomes a "computer-implemented method/invention" and therefore patentable.

As I'm not an expert on European patent law or how the EC works, I can't say for sure that the issue of software patents is dead in the water. From the EC's statement, it is apparent that proponents of software patents have been dealt a serious blow, and that any software patent granted up to now can be challenged in court. Whether this is the death knell for software patents in the EU remains to be seen.