FITUG e.V.
Förderverein Informationstechnik und Gesellschaft
FITUG e.V.Förderverein Informationstechnik und Gesellschaft |
|
http://europa.eu.int/comm/internal_market/en/intprop/indprop/softpaten.htm
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
Consultation document for downloading (PDF files: 43-49 KB)
http://europa.eu.int/comm/internal_market/en/intprop/indprop/soften.pdf
Study "The Economic Impact of Patentability of Computer Programs"
http://europa.eu.int/comm/internal_market/en/intprop/indprop/studyintro.htm