WRITTEN QUESTION E-2764/01 by Jonas Sjöstedt (GUE/NGL) to the Commission. Patent protection at the expense of small undertakings.
Date: 2001-10-09
Institutions: European Parliament, Provisional data
Subjects: Sweden, equal treatment, industrial property, invention, large business, small business

4.4.2002

EN

Official Journal of the European Communities

C 81 E/207

Answer given by Mr Bolkestein on behalf of the Commission

(23 November 2001)

The Commission launched a 226 procedure after having received complaints demonstrating that only
double wall tankers were allowed in Sweden. Typically such a requirement would be considered as
infringing Article 28 (ex Article 30) of the EC Treaty. After contacts with the Swedish authorities, they
certified that no rule or practice in Sweden imposes a ban on single wall tankers. Consequently the case
was closed.

The Swedish authorities clarified that in roadworthiness tests, it was prescribed that certain simultaneous
loading of different substances was not allowed, thus creating the impression that trailers with two tankers
but with single walls were not allowed to be imported or used.

(2002/C 81 E/247)

WRITTEN QUESTION E-2764/01

by Jonas Sj(cid:246)stedt (GUE/NGL) to the Commission

Subject: Patent protection at the expense of small undertakings

(9 October 2001)

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 (cid:145)carpet bombing(cid:146), 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 (cid:145)carpet bombing(cid:146) 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 (cid:129) and in some cases
have had such protection for a great many years (cid:129) 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.

C 81 E/208

Official Journal of the European Communities

EN

4.4.2002

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 (cid:129) and not only for applicants (cid:129) 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.

(2002/C 81 E/248)

WRITTEN QUESTION E-2767/01

by Jonas Sj(cid:246)stedt (GUE/NGL) to the Commission

(9 October 2001)

Subject: The Commission(cid:146)s actions in the sickness insurance case before the Court of Justice

In the Vanbraekel case heard by the Court of Justice the governments of Sweden, Iceland, Norway and
another nine EU countries intervened, arguing that in their opinion Dutch patients should not be entitled
to reimbursement by their national sickness insurance scheme for treatment in another country.

The Commission urged the Court to take the opposite view.

Does the Commission consider it reasonable to directly oppose the majority of EU Member States on such
a burning political issue? Should the Commission not lie low and adopt a more (cid:145)civil service(cid:146) attitude and
refrain from pushing for a politically revolutionary social policy with a supranational thrust?

Answer given by Ms Diamantopoulou on behalf of the Commission

(12 November 2001)

submitted for a preliminary ruling,
the Vanbraekel case
In connection with questions
(C-368/98) (1), the Commission,
in its role as guardian of the provisions of the Treaty, pursuant to
Article 211 (ex Article 155) of the EC Treaty, presents the Court of Justice with elements of interpretation
of Community law that it considers to be relevant for settling the dispute concerned.

such as

The observations presented by the Commission to the Court of Justice are in keeping with the objectives of
the Community laid down in the EC Treaty and can only be based on the principles established in
Community law, primary or secondary legislation, as interpreted by the Court of Justice through its case-
law concerning, in particular, the exercising of basic freedoms guaranteed by the EC Treaty.

(1)

Judgment of the Court of 12 July 2001.