EN Official Journal of the European Union CE 65/247

(2004/C 65 E/263)

WRITTEN QUESTION E-2923/03

by Marianne Thyssen (PPE-DE) to the Commission

(2 October 2003)

Subject: The patent system and SMUs

During the debate in the European Parliament on the proposal for a directive on the patentability of computer-implemented inventions, many observations were made which showed that, as a general rule, the application of patent legislation was not an easy task for SMUs. Even innovative SMUs still require patent protection.

Can the Commission indicate if it has any knowledge of existing mechanisms in the Member States which assist their SMUs financially or legally and/or administratively in the patenting procedure? Does not the Commission think that that procedures should be less expensive and more efficient with regard to both applications for patents and the subsequent defence of patent entitlements? Does not the Commission think it desirable — given the forthcoming introduction of the Community patent — that such a mechanism should be created at European Union level?

Answer given by Mr Bolkestein on behalf of the Commission

(17 November 2003)

The question of accessibility to patents by small and medium-sized (SMEs) enterprises is acknowledged to be an important challenge. The introduction of the Community Patent itself, which would be valid across all Member States, would have a major benefit for smaller businesses, because any litigation that was needed to enforce the patent would only be necessary once for the whole Union rather than fifteen times in each Member State. This would greatly facilitate access to the Single European Market for small companies and individuals with innovative products.

Concerning the support which may be available in the individual Member States for small and medium-sized enterprises, two studies have recently been carried out on behalf of the Commission's Directorate-General for the Internal Market.

The first was an investigation into the role of the national patent offices in promoting innovation. This found that the Member States offer through their national patent offices a range of services which are aimed at increasing awareness of, and accessibility to, the patent system. The report summarises the services currently available and makes recommendations for future activities.

The second study was concerned with the possible introduction of an insurance against costs for litigation in patent cases. It found that no Member State currently has any substantive law specifically on patent litigation insurance, although some cover is available privately, and there has been discussion about the possibility of legislation in some countries. One of the study's conclusions was that the introduction of Community-wide scheme of patent litigation insurance has the potential to offer real benefits, especially for companies with limited financial means, but that difficult issues were raised and more work would be needed. In the light of these findings, the Commission is planning a further more detailed study. After this is completed, the Commission will decide whether action is necessary and if so what this might be.

The reports of both studies are available on the web site of the Commission's Directorate-General for the Internal Market at: http://europa.eu.int/comm/internal_market/en/indprop/patent/index.htm

Another study, ‘Enforcing small firm's patent rights’, has been carried out on behalf of the Commission's Enterprise Directorate-General, reflecting specific concern on the part of the Union that patents are used less than they might be by SMEs. The study, through a survey of 4 000 SMEs having patent and prototypes, identifies that two-thirds had experienced attempts to copy their patented inventions. It also assesses the perception by the firms of the difficulties in enforcing their rights and their position on the various options to help them to overcome these difficulties.

The report on this study is available at: http://www.cordis.lu/innovation-policy/studies/im_study3.htm

Two examples of initiatives in the Member States to assist SMEs in the patenting procedure, were identified in the 2003 European Charter for Small Enterprises Implementation Report (1). Although, this list is not exhaustive, these initiatives were recognised as useful and innovative. The first is an Irish website enabling the processing of patent and trademark applications on-line as an example of innovative on-line services. The second is the German programme ‘Knowledge creates markets’ (‘Wissen schafft Märkte’) to raise universities' awareness on patents and transfer of research findings.

Besides, the European Charter for Small Enterprises foresees to provide support to SMEs, although not exclusively, strengthening programmes aimed at promoting technology dissemination towards small enterprises as well as the capacity of small business to identify, select and adapt technologies.

With regards to Community support mechanisms to SMEs, the Intellectual Property Rights (IPR)-Helpdesk, a Commission pilot project, financed under the Community Research Framework Programme by Commission's Enterprise Directorate General, was launched in 1998 as aiming to assist potential and current contractors taking part in Community funded research and development projects with IPR issues.

Since 1 January 2002, this IPR-Helpdesk (http://www.cordis.lu/ipr-helpdesk/en/home.html) assists the target audience, including SMEs, on IPR related issues with a special focus on Community diffusion and protection rules and issues relating to intellectual property in European research and technological projects.

In addition, a financial Community contribution can be obtained by contractors, notably SMEs, taking part in Community funded research and development projects under the 6th Community Research Framework Programme, for costs incurred during the life of the project in relation with the patenting of inventions resulting from the project.

Furthermore, in the context of the Commission's Action Plan to increase investment in research (2), a number of actions are aimed at developing European guidelines covering notably IPR arrangements in collaborations between universities and industry and at promoting Union-wide IPR awareness and training activities, both are particularly important for SMEs.

Finally, it is to be noted that according to the Community Framework for State Aid for Research and Development (3), operating costs (such as IPR protection) incurred directly by SME undertakings beneficiaries of national aid, as a result of research and development activities, are eligible under the mentioned Framework, and that the aid granted is considered — under certain conditions — to be compatible with the Common Market.

(1) COM(2003) 21 final.

(2) COM(2003) 226 final.

(3) OJ C 45, 17.2.1996.