WRITTEN QUESTION E-0124/01

by Graham Watson (ELDR) to the Commission

(1 February 2001)

Subject: Protection of the patents system to ensure its continued effectiveness

Is the Commission taking any action to ensure that the patents system remains a tool for rewarding initiative and does not become a financial tool to control markets adversely, as has already begun to happen in the United States following the introduction of the possibility of patenting software and/or business processes?

Answer given by Mr Bolkestein on behalf of the Commission

(7 March 2001)

The patents system at the European level operates within the context of the European Patent Convention (EPC), which is an international treaty providing for the granting of European Patents. The contracting parties of the EPC comprise all Member States and some third countries. The rules governing what can and cannot be patented are set out in the EPC as well as in the national laws of the Member States, and these rules have been interpreted by the national courts and the appellate bodies established by the EPC. The only Community law in this area so far relates to the field of biotechnological inventions.

Under the EPC, methods for doing business and programs for computers as such are explicitly excluded from the definition of patentable inventions. However, legal decisions have established that patent applications should not be refused merely because they are implemented on a computer or involve methods of doing business, if they have a technical character. On the other hand, in the absence of technical character, no patent can be granted.

In Europe, as opposed to the United States, patents for abstract business methods are not allowed, and there has been no significant pressure to change this situation. The only issue is how computer-implemented business methods are to be treated. The Commission has therefore chosen to treat this as part of the wider question of the patentability of computer-implemented inventions.

In the context of the follow-up to the Green Paper on the Community Patent and the Patent System in Europe(1), the Commission has been considering the legal situation in respect of patentability of computer-implemented inventions. A consultation on this subject was launched via the Internet in October 2000 whereby interested parties, the public at large and Member States were invited to comment by 15 December 2000 on the basis of a consultation paper of the Commission:

http://www.europa.eu.int/comm/internal_market/en/intprop/indprop/softpaten.htm

Separately, the Commission has carried out an independent study on the economic impact of the patentability of computer programs, the results of which were published:

http://www.europa.eu.int/comm/internal_market/en/intprop/indprop/studyintro.htm

and on which interested parties were invited to comment as part of the above consultation. A study has also been launched by the Commission entitled Patent protection of computer programs: defining awareness actions to accompany the future patent reform relating to computer program inventions (see: http://www.cordis.lu/innovation-smes/src/studies.htm).

The aim of the consultation was to help the Commission 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. In the light of the results of the consultation, the Commission intends to define its position on the issue during the first half of this year.

(1) COM(1999) 42 final.