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[FYI] Software patents - EU Commission launches consultations


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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 

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 

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)     


Study "The Economic Impact of Patentability of Computer Programs"