WRITTEN QUESTION E-2764/01

by Jonas Sjöstedt (GUE/NGL) to the Commission

(9 October 2001)

Subject: Patent protection at the expense of small undertakings

Short-term patent protection has been criticised by small undertakings as an obstacle to undertakings other than the patent holders and it is this factor which affects most small undertakings. Short-term patent protection allows large companies to obtain automatic protection over broad technical fields. Japanese and US companies for example are going in for carpet bombing, which substantially reduces the options for small less wealthy companies. If there is a large number of patents and short-term patents in a given technical field it is difficult and costly for a small company to operate there.

Does the Commission agree that this situation may be the result of short-term patent protection and what does it intend to do by way of follow up action to prevent small companies from being adversely affected by the carpet bombing by large companies of broad areas of technology?

Answer given by Mr Bolkestein on behalf of the Commission

(14 November 2001)

The protection of inventions by utility model is generally seen as a more flexible, less costly form of protection than patent protection. This is why this instrument is often considered as being well suited to businesses, particularly small and medium-sized enterprises (SMEs), which are active in certain sectors of innovation.

However, the Commission is aware that this form of protection may give rise to concerns, particularly on the part of small businesses, in those Member States, such as in Sweden, where protection by utility model does not yet exist.

On the other hand, in Member States which already have protection by utility model and in some cases have had such protection for a great many years the Commission has no knowledge of any particular difficulties facing small businesses, such as those raised by the Honourable Member.

The Commission acknowledges, however, that the use of this form of protection may, in certain cases, give rise to abuses, and as part as the discussions concerning the proposal for a European Parliament and Council Directive approximating the legal arrangements for the protection of inventions by utility model(1), the Commission has taken into account the concerns expressed on this subject by the parties involved.

In its amended proposal(2), the Commission introduced, on the basis of the opinion of the European Parliament(3), a certain number of provisions to increase legal certainty, transparency and the rights of third parties in order to prevent abuses of protection by utility model. The improvements made include a better definition of inventive activity, the possibility for third parties and not only for applicants to request that a search report be drawn up on the state of the art, the adding of the search report to the file, and the obligation to draw up a search report in the event of legal proceedings or extension of protection beyond six years.

Lastly, and this is an important point if the concerns of the Honourable Member were to be borne out, the amended proposal provides for a follow-up of the Directive. After a period of three years following transposition of the Directive into national law in the Member States, the Commission may propose that corrections be made to the mechanism.

(1) OJ C 36, 3.2.1998.

(2) OJ C 248 E, 29.8.2000.

(3) OJ C 175, 21.6.1999.