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Even though the European Parliament voted against the software patents in Europe in 2005, new measures that could make software patents enforceable are still being discussed with the US counterparts or within the framework of the Community Patent.

The Foundation for a Free Information Infrastructure (FFII) reports that a bilateral patent treaty could be agreed and signed with the United States by the end of the year. The treaty could contain provisions on software patents that will make them legal in both states.

Benjamin Henrion, a Brussels based patent policy specialist, explained for FFII: "Talks in the Transatlantic Economic Council (TEC) are the current push for software patents. The US want to eliminate the higher standards of the European Patent Convention. The bilateral agenda is dictated by multinationals gathered in the Transatlantic Economic Business Dialogue (TABD). When you have a look who is in the Executive Board of the TABD, you find not a single European SME in there."

The substantive harmonisation of patent laws was one of the topics during the Transatlantic Economic Council (TEC) on 13 May 2008 between high level representatives from EU and US. TEC is a closed trade process and it is not the first time free trade agreements are being used by the US counterparts to promote their IP requirement - such as the TRIPS treaty.

Also it is worth noting that after the failure of the Substantive Patent Law Treaty, the US has switched to TEC, a closed forum, to discuss the software patents issues with EU.

FFII President, Alberto Barrionuevo, explains why the current approach is wrong: "The European Union does not have a Community Patent, neither a substantive patent law in its acquis, except the biotech directive. As long as there is no substantive patent law in the EU, it is quite silly to discuss about a bilateral patent treaty with the United States. Its like a blind showing the way for a deaf. If the USA really wanted to fix their patent practice they should first switch to first-to-file and join the European Patent Convention."

But this is not the only open door for software patents. The European Community Patent, a patent draft law that would allow individuals and companies to obtain a unitary patent throughout the European Union, is still being discussed. Acording to a member representing FSFE, part of the CEA-PME SME Federation, that participated in a Working breakfast on Community Patent, a Director of the European Commission considered the possible adoption of the Community Patent proposal as the final attempt. Right now only Spain is openly against the project.

Apparently, most countries were now satisfied with the proposal to have patents only in English, French, and German. Unofficial automated translations would be provided in the other languages of the EU, even though the EC representative acknowledged the general low quality of automated translations but said that the EPO had now developed some amazing new software for automated translations.

The FFII representative also highlighted the EC software patents policy: "When talking about software patents, she constantly called them "wrongly granted" patents or "disguised software patents". This is consistent with the European Commission's position that software patents are not valid, but "computer implemented inventions" are valid. In reality, the latter is just a vague term which includes software patents. The European Commission's use of these funny terms and definitions makes meaningful dialogue difficult."

McCreevy wants to legalise Software Patents via a US-EU patent treaty (13.05.2008)
http://press.ffii.org/Press_releases/McCreevy_wants_to_legalise_Softwa...

Working breakfast on Community Patent (15.05.2008)
http://fsfe.org/en/fellows/ciaran/ciaran_s_free_software_notes/working...

Transatlantic Economic Council: objectives for Spring 2008 meeting
http://ec.europa.eu/enterprise/enterprise_policy/inter_rel/tec/doc/tec...

EDRI-gram: ENDitorial - Regulating the Patent Industry (25.10.2006)
http://www.edri.org/edrigram/number4.20/patents