WRITTEN QUESTION E-0194/03

by Theresa Villiers (PPE-DE) to the Commission

(31 January 2003)

Subject: Software patents

1. Has the Commission conducted a full study of the economic impact of software patents on the software industry, taking into account similar schemes in the US and Japan? If so, what were the findings and if not, why not?

2. Does the Commission envisage having exemptions for some organisations, such as charities and schools, who have become increasingly dependent on free software?

3. In the directive, how does the Commission propose to protect the interests of SMEs who are working in the IT sector?

4. Does the Commission have any plans to exempt any software algorithms from the software patents directive?

Answer given by Mr Bolkestein on behalf of the Commission

(7 March 2003)

The Explanatory Memorandum to the Commission's proposal for a Directive on the patentability of computer-implemented inventions(1) refers to several studies, including two conducted on behalf of the Commission itself, which were taken into consideration in the formulation of the proposal. The model taken for comparison purposes tends to be the United States, because they have the most open approach to patenting of computer programs. In contrast, the present practice in Europe is not to permit patenting of computer programs as such, and only to grant patents for inventions which use computer programs in their implementation if an inventive technical contribution is present. The situation in Japan is normally considered to be intermediate between the American and European positions.

The evidence from the studies was inconclusive. The American approach was found to have both positive and negative attributes, and it is difficult to judge which are more important in terms of their overall effects. Similarly, as regards the European approach, little evidence was found to suggest that the present practice was causing difficulties, and in particular, that European independent software developers were being unduly affected, at least up to now.

Faced with this situation, the Commission concluded that there was no justification for introducing any significant modification to the present practice. Thus the approach of the proposal for a Directive is to harmonise, rather than to change, the legal position, thereby clarifying the legal framework applying to these inventions. In particular, and contrary to American practice, there is no extension of patentability to computer programs as such, and this has been confirmed by the exclusion of software product claims from the possible form of claims.

Nothing in the Directive should deprive schools or charitable organisations of the possibility to do anything which is currently free to them. Moreover, the laws of the Member States governing patent infringement in general (which will continue to apply) do not normally extend to acts done privately and for non-commercial purposes. The Commission does not intend that this situation should change.

Given the nature and scope of the proposal, it is not feasible to include explicit measures involving differential treatment of small and medium-sized enterprises (SME's). Nevertheless, such entities should benefit from the increased legal certainty which will result from the harmonisation effects of the Directive. The monitoring which the Commission is required to carry out under Article 7 of the proposal will detect any issues which may arise of particular concern to SMEs. Software developers of all sizes should also benefit from the provision in the Directive which safeguards the exemptions concerning decompilation and interoperability provided for under Council Directive 91/250/EC of 14 May 1991 on the protection of computer programs(2) by copyright law.

Currently, inventions which make use of algorithms may be patentable if they are concerned with the solution of a technical problem. A patent for an invention which involves an algorithm covers the use of the algorithm for the purpose defined in the claims of the patent, but does not monopolise the algorithm itself or its use in other contexts. The proposed Directive will not change this situation.

(1) OJ C 151 E, 25.6.2002.

(2) OJ L 122, 17.5.1991.