The 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 Commission 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 patenting practice into line with the 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 Commission said that the EPO would continue to handle the granting of patents, but that 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 European Court of Justice (ECJ).

"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 Commission said in a statement.

The Commission pointed out that, specifically, this meant that 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 Commission stated.

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

But he said the Commission's reasoning is still flawed, since it relies on the courts to strike down the software patents that the EPO continues to grant.

"(Litigation) is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," Hintjens stated.

Other campaigners believe that the Community Patent is no longer at the front of the Commission's agenda for making patents easier to obtain and enforce in Europe. "It isn't going to happen anytime soon. There is too much resistance against it," said Florian Mueller, a leading anti-software-patent activist, in a recent posting on his website.

He said a more immediate danger is the European Patent Litigation Agreement (EPLA), which would create a court called the European Patent Court for handling patent disputes. This would supersede national courts, and would be likely to reflect EPO's point of view on software patents, according to Mueller.

"If it were to be ratified in any form near the current draft, there would be a flood of software patent lawsuits in Europe," Mueller wrote.