The EC (European Commission) this week appeared to take a step back from its earlier position on the patentability of software, stating that computer programs are not patentable, and that patents on them may be struck down by the courts.

The statement, available on the European Parliament's website, made in response to a formal question from a Polish MEP, is a shift from the stance the EC has taken in recent years, according to some critics of software patents, particularly during its attempts to pass a directive liberalising what could be patented. That directive was eventually thrown out by the European Parliament, after failed attempts to alter its thrust.

Campaigners against the proposed directive feared it would bring general EU (European Union) patenting practice into line with the EPO (European Patent Office), which has granted numerous US-style patents on software and business practices such as's 'One-Click' mechanism. More recently, those against software patents feared that a proposed 'Community Patent' would also be governed by EPO practice.

The EC said the EPO would continue to handle the granting of patents, but said the Community Patent wouldn't make these any more enforceable than they already are, because the post-grant phase of patents would fall under Community Patent regulation, subject to the interpretation of the ECJ (European Court of Justice).

"The ECJ is not bound by the case law developed by the EPO and is free in its interpretation of the provisions of the EPC, once it becomes part of the Community acquis [the existing body of EU law]," the EC said in a statement.

The EC pointed out that this specifically meant patents for computer programs could be invalidated by the ECJ.

"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 EC stated.

The FFII (Foundation for a Free Information Infrastructure), which campaigns against software patents in Europe, saw the statement as a sign that the EC is changing its stance. "It is good to see that the EC no longer presents EPO case law as the status quo which must be codified," said FFII president Pieter Hintjens, in a statement.

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