# CE2004065EN.01009201.xml

| 13.3.2004 | EN | Official Journal of the European Union | CE 65/92 |
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13.3.2004

EN

Official Journal of the European Union

CE 65/92

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(2004/C 65 E/104)

WRITTEN QUESTION E-1794/03

by Claude Moraes (PSE) to the Commission

(28 May 2003)

Subject:   Software patents

Subject:

In recent research undertaken on the subject (1), it has been argued that a patent system may interfere with competition and innovation. This argument relies on the notion that innovation is both ‘sequential’ (i.e. each invention builds upon its predecessor) and ‘complementary’ (i.e. a diversity of innovators raises the chances of discovery). This argument therefore goes against the traditional reasoning for a patent system.

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Does the Commission in any way agree with the argument? How does the Commission respond to it in relation to the Community patent?

Answer given by Mr Bolkestein on behalf of the Commission

(19 June 2003)

(19 June 2003)

The Commission is aware of the research referred to by James Bessen and Eric Maskin. The authors of the paper argue that sequentiality and complementarity are characteristics of industries such as those for computer software and hardware. This may indeed be the case, but in no way does it go ‘against the traditional reasoning’ behind patent systems. In fact, sequentiality and complementarity are, to a greater or lesser extent, characteristics of all innovation, although the degree of interdependence between inventions varies considerably between sectors.

The Commission welcomes all research which contributes to the debate on the scope and utility of patent protection, particularly in high technology sectors. The work by Bessen and Maskin in this field is indeed highly interesting and the model that the authors develop in their paper is undoubtedly elegant and sophisticated. However, like all models of this kind, there are simplifications involved, and caution has to be exercised in applying the results of such work to the real world.

Following an extended period of consultation and reflection, the Commission came to the conclusion that in the field of software inventions, insufficient grounds had been shown to justify either a significant extension, or restriction, of the scope of what should be regarded as patentable. In particular, there was little hard evidence of the interfering effect which patents are alleged by some to have on innovation. This is why the proposal for a directive on computer-implemented inventions involves harmonisation and clarification of certain aspects of the law, but is based substantially on current practice. The proposed directive does, however, include a provision for the Commission to report on any effects the directive may have on innovation, competition and business.

As regards the Community Patent, the objective of this initiative is to create a Community-wide unitary right granted by the European Patent Office and enforced within a single Community jurisdiction. It is however not the intention in this context to modify the substantive conditions for patentability as they are currently expressed in the European Patent Convention and the national patent laws of the Member States.

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(1)  Sequential Innovation, Patents, and Imitation, by James Bessen and Eric Maskin, July 2002, Harvard University and MIT.

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