WRITTEN QUESTION E-0194/03 by Theresa Villiers (PPE-DE) to the Commission. Software patents.
Date: 2003-01-31
Institutions: European Parliament, Provisional data
Subjects: derogation from EU law, economic consequence, impact study, information technology industry, invention, patent law, small and medium-sized enterprises, software

C 161 E/192

Official Journal of the European Union

EN

10.7.2003

(2003/C 161 E/200)

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?

Does the Commission envisage having exemptions for some organisations, such as charities and

2.
schools, who have become increasingly dependent on free software?

In the directive, how does the Commission propose to protect the interests of SMEs who are working

3.
in the IT sector?

Does the Commission have any plans to exempt any software algorithms from the software patents

4.
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.

10.7.2003

EN

Official Journal of the European Union

C 161 E/193

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.

(2003/C 161 E/201)

WRITTEN QUESTION E-0203/03

by Maurizio Turco (NI) to the Commission

(3 February 2003)

Subject: Unequal access to the lawyer’s profession caused by Directive 98/5/EC

Directive 98/5/EC (1) stipulates that
conditions, in all Member States.

the profession of

lawyer may be practised, subject

to certain

Conditions governing access to the profession of lawyer differ in the various Member States: to enter the
profession, a law degree is sufficient in some countries while in others an exam also needs to be sat.

Given the growing number of cases in which law graduates enter the lawyer’s profession in Member States
whose legislation does not provide for an extra exam and subsequently, in accordance with Directive 98/5/
EC, exercise the profession in countries in which the exam is compulsory.

Can the Commission say whether it is aware of this disparity?

Has it taken (cid:1) or does it intend to take (cid:1) steps to harmonise access to the lawyer’s profession? If so, how
and when?

law? In which cases have
What countries have not yet transposed Directive 98/5/EC into national
infringement proceedings been instituted pursuant to Article 226 of the Treaty? What stage have the
proceedings reached in each of these cases?

(1) OJ L 77, 14.3.1998, p. 36.

Answer given by Mr Bolkestein on behalf of the Commission

(25 February 2003)

The Commission is aware that some Member States, unlike others, make access by their nationals to the
profession of lawyer conditional on sitting an examination. However, under the Directive on a general
system for the recognition of higher-education diplomas (1), someone who has obtained a law degree in a
Member State where there is an additional examination requirement for access to the profession of lawyer
cannot obtain the professional title of lawyer in another Member State unless they have passed the lawyer’s
examination in their home Member State. Since this Directive can be invoked only by fully qualified
professionals, under the terms of Directive 98/5/EC (2) a person holding a higher-education diploma in law
could become established as a lawyer in his or her home Member State, under the professional title used in
the host Member State, only by obtaining academic recognition of his or her higher-education diploma,
which would usually mean repeating most if not all of his or her training there. Such a requirement seems
dissuasive, but the Commission is prepared to examine any evidence the Honourable Member may have in
his possession on this subject.

The Commission does not intend to propose harmonisation of access to the profession of lawyer, as this is
not necessary in order to ensure free movement for lawyers. Moreover, such harmonisation could run
counter to the principle of subsidiarity, as explained in recital 7 of Directive 98/5.