Annexes to COM(2002)92 - Patentability of computer-implemented inventions - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)92 - Patentability of computer-implemented inventions. |
|---|---|
| document | COM(2002)92  |
| date | February 20, 2002 |
Internationally, the proposal should improve the competitive position of European software businesses in the competition with our global trading partners, the U.S. and Japan where software patents are widely granted.
5. Does the proposal contain measures to take account of the specific situation of small and medium-sized firms (reduced or different requirements etc)*
Given the nature and scope of the proposal, it is not feasible to include explicit measures involving differential treatment of SME's. Nevertheless, such entities should benefit particularly from the increased legal certainty which will result from the implementation of the Directive (see above, at the end of section 2 and at section 4 (likely economic effects on investment and the creation of new businesses)).
Consultation
6. List the organisations which have been consulted about the proposal and outline their main views
The proposal itself has not been circulated to interested parties since the Commission still has to adopt it. However, the need for a Commission initiative in this field has been identified in a consultation process which the Commission started in 1997 with the Green Paper on the Community patent and the patent system in Europe [48]. The European Parliament [49] and the Economic and Social Committee [50] have both supported the patentability of inventions involving computer programs. Moreover, the interested circles had strongly urged legislative action in conferences organised by the Luxembourg and U.K. Presidencies in co-operation with the Commission. These conferences were held in Luxembourg on 25-26 November 1997 [51] and in London on 23 March 1998 [52]. In a follow-up communication to the Green Paper [53], the Commission took stock of the consultation process and stated that the patentability of computer programs was one of the priority issues identified during this process on which the Commission should rapidly submit a proposal. Organisations representing European businesses, namely UNICE and EICTA [54], continued to ask the Commission to take a legislative initiative on the issue. UNICE, for instance, in February 2000, renewed its call for swift action to remove ambiguity and legal uncertainty which surrounds the patentability of computer-implemented inventions. If rapid action were not undertaken, the respective market segment would be dominated by Europe's main trading partners, in particular Japan and the U.S. where there were fewer restrictions on patenting inventions relating to or relying on software.
[48] COM(1997) 314 final of 24.6.1997. The issue had already been addressed in the Commission "questionnaire on Industrial Property Rights in the Information Society.
[49] Resolution on the Commission Green Paper, A4-0384/98, Minutes of 19.11. 1998, paragraph 16, [1999] OJ EPO 197.
[50] Opinion of the Economic and Social Committee on the Green Paper, [27.4.1998] OJ C 129, at 8, points 1.14., 6.9.1.1. and 6.9.1.2.
[51] See point 11 of the conclusions of this hearing, OJ EPO 1-2/1998, at 82.
[52] The programme of the conference as well as transcripts of the speeches given there are accessible on the world-wide web at http://www.patent.gov.uk.
[53] COM(1999) 42 final of 5.2.1999.
[54] See, e.g., the EICTA position statement at www.eicta.org.
The Commission had also distributed a questionnaire on the main points that should be dealt with in the Directive. The answers received in 1999 have been taken into account in the present proposal.
The services of the Commission organised a meeting with representatives of the open source community, namely a delegation of EuroLinux representatives, on 15 October 1999 in Brussels [55]. On 18 November 1999, the Committee of the Regions gave its opinion on the issue [56]. Both EuroLinux and the Committee have expressed concerns that software patents might impede the progress of innovation in the software field. These concerns have been taken into consideration in this proposal.
[55] The representatives of EuroLinux have published an unofficial, non-authorised report of the meeting on the web site of the EuroLinux Alliance at http://eurolinux.ffii.org/news/euipCAen.html.
[56] Opinion of the Committee of the Regions on 'The competitiveness of European enterprises in the face of globalisation - How it can be encouraged', OJ C 57, 29.2.2000, at 36 et seq., points 7.4. and 8.20.
The Commission launched an independent study on the scope of harmonisation [57] in the light of the recent developments in the United States. While the consultation on the Green Paper had clearly shown the need to harmonise and clarify the current legal situation, the purpose of the study on the economic impact of the patentability of computer-implemented inventions was to provide assistance in determining how extensive harmonisation should be. For this purpose, the study assessed the main consequences for innovation and competition, in particular for SMEs, of extending patent protection beyond current levels. The results of the study, as well as of other pertinent economic studies [58], have been taken into account in this proposal.
[57] See note 11.
[58] Ibid.
Finally, the Commission conducted a consultation between October and December 2000 on the basis of a paper which was communicated to the Member States and made generally available in the Internet. This paper sought views on whether there was any need at all for action at the Community level, and in the event this question were to be answered in the affirmative, what the appropriate level would be. The paper then proceeded to set out in some detail the current state of the case law on patentability of software-implemented inventions as established within the EPO, and suggested on the basis of this a number of very specific elements which might figure in any harmonisation exercise based on this status quo. 1447 separate responses were received, which were analysed by a contractor and summarised in a report which has also been published [59]. While opposition to patents relating to software was expressed by a large majority of the individual responses to the consultation, the collective responses on behalf of the regional and sectoral bodies, representing companies of all sizes across the whole of European industry, were unanimous in expressing support for rapid action by the Commission more or less along the lines suggested in the discussion paper.