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[FYI] Software patents - EU Commission launches consultations
- To: debate@fitug.de
- Subject: [FYI] Software patents - EU Commission launches consultations
- From: "Axel H Horns" <horns@t-online.de>
- Date: Fri, 20 Oct 2000 11:51:02 +0200
- Comment: This message comes from the debate mailing list.
- Organization: External
- Sender: owner-debate@fitug.de
http://europa.eu.int/comm/internal_market/en/intprop/indprop/softpaten
.htm
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Intellectual & Industrial Property Industrial Property
Software patents - Commission launches consultations
On 19 October 2000 the European Commission has launched consultations
via the Internet on the patentability of computer-implemented
inventions. The absence of EU-harmonised legislation may be a
potential barrier to industrial growth, competitiveness and the
development of the Internal Market. Interested parties, the public at
large and Member States are invited to comment until 15 December 2000
on the basis of this consultation paper. This paper will also be
notified formally to Member States. Considerable debate has taken
place in Europe recently about the patentability of computer
software. Some consider that patents in this field tend to stimulate
innovation in this sector by providing adequate protection of the
substantial amounts of money and resources that can be required to
develop sophisticated and specific software. Others believe that
patents will on the contrary stifle fair competition and hinder
innovation. The aim of the consultation is to help the Commission to
identify the best approach to the issue so as to strike the right
balance between promoting innovation and ensuring adequate
competition in the market place.
Some sections of European industry have repeatedly asked for swift
action to remove the current ambiguity and legal uncertainty
surrounding the patentability of software-related inventions. Their
argument is that in the absence of such patentability, Europe risks
losing the global innovation race in this high-technology sector. On
the other hand, a substantial number of small and medium-sized
enterprises and those favouring the creation and use of open source
software, the so-called "open source community", have increasingly
raised concerns about software patents. The consultations just
launched will give all parties another chance to comment on the issue
and allow the Commission to take account of developments since its
earlier consultation on the basis of a 1997 Green Paper on patent
issues. This is all the more important given the rapid pace of change
of the economic environment in the Internet-based Information
Society.
In a Communication of February 1999 on patent protection, the
Commission identified the need for legislative action regarding
patent protection for computer-implemented inventions. The current
legal situation is unsatisfactory because it is lacking clarity and
legal certainty. Computer programs "as such" are excluded from
patentability. Yet, thousands of patents for technical inventions
using a computer program have been granted by national patent offices
and by the European Patent Office (EPO). Furthermore, while the
national and EPO provisions setting out the conditions for granting
such patents are similar, their application in practice varies
considerably.
This situation has adversely affected investment and innovation in
the software sector and has also had a negative impact on the
functioning of the Internal Market.
Harmonisation of national patent laws on the issue is therefore
necessary. This should provide greater transparency for European
companies, especially for SMEs. It should also improve the
competitive position of the European software industry in relation to
its major trading partners. The need to improve the competitive
situation is all the more urgent because of the increasing
distribution and use of computer programs on a world-wide scale via
the Internet.
In parallel with the preparation of a legislative initiative by the
European Community, amendments to the European Patent Convention are
currently under preparation. To this end, an intergovernmental
conference is due to be held in Munich in November 2000. It is
possible that this conference will decide to delete computer programs
from the list in the Convention of items that cannot be patented. A
majority of contracting states to the Convention (i.e. all EU Member
States plus Cyprus, Liechtenstein, Monaco and Switzerland) seem
prepared to support such a move. However, a number of EU Member
States have expressed a preference for the Commission to come forward
with an initiative in this field.
The Commission considers such an initiative to be essential to
prevent national courts and patent offices from developing practices
which would allow for the granting of undesirable patents. It is only
by EC-wide legislation that we will be able to restrict the
conditions for the patentability of computer-implemented inventions
to the right level in Europe. The wide consultation with all
interested parties, including the Member States, should provide
guidance for the Commission in identifying this level. The Commission
will define its final position only after the end of this
consultation. In deciding its policy, the Commission will take into
account the likely impact of patents for computer-implemented
inventions in particular on:
innovation and competition, both within Europe and internationally,
European businesses, including small and medium-sized enterprises,
electronic commerce, and the creation and dissemination of free/open
source software.
In the light of recent developments in the United States the
Commission launched an independent study on the economic impact of
the patentability of computer programs and interested parties are
invited to comment on its findings as part of the consultation. The
study appears to favour a harmonisation and clarification of European
patent laws on the issue based on the status quo in Europe. It
considers that any move to strengthen patent protection in the
software industry cannot claim to rest on solid economic evidence.
Date: 19 October 2000 For more information: MARKT-SOFTPAT@cec.eu.int
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Consultation document for downloading (PDF files: 43-49 KB)
http://europa.eu.int/comm/internal_market/en/intprop/indprop/soften.pd
f
Study "The Economic Impact of Patentability of Computer Programs"
http://europa.eu.int/comm/internal_market/en/intprop/indprop/studyintr
o.htm