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Dear Mr Hache,
Thank you for your correspondence concerning the draft directive on the patentability
of computer-implemented inventions.
The European Parliament's Legal Affairs Committee has voted on my report on the
directive and there will be continuing debate and further democratic scrutiny before
the directive becomes law.
At this early stage of legislative process, it is nonetheless important to establish
the facts about what the draft EU directive and what I, as the Parliament's
rapporteur, are aiming to achieve in the amendments tabled to the Commission proposal.
It has been suggested that the Parliament's report will for the first time allow the
patentability of computer-implemented inventions. This is simply not true. The
patenting of computer-implemented inventions is not a new phenomenon. Patents
involving the use of software have been applied for and granted since the earliest
days of the European Patent Office (EPO). Out of over 110,000 applications received at
the EPO in 2001, 16,000 will have dealt with inventions in computer-implemented
technologies. Indeed, even without an EU directive, these patents will continue to be
filed, not only to the EPO but also to national patent offices.
As you will be aware, in the US and increasingly in Japan, patents have been granted
for what is essentially pure software. Some EPO and national court rulings indicate
that Europe may be drifting towards extending the scope of patentability to inventions
which would traditionally have not been patentable, as well as pure business methods.
It is clear that Europe needs a uniform legal approach which draws a line between what
can and cannot be patented, and prevents the drift towards the patentability of
software per se.
My intention is clear in the amendments tabled and in a new Article 4 in the text, to
preclude; the patentability of software as such; the patentability of business
methods; algorithms; and mathematical methods. Article 4 clearly states that in order
to be patentable, a computer-implemented invention must be susceptible to industrial
applications, be new, and involve an inventive step. Moreover I have added a
requirement for a technical contribution in order to ensure that the mere use of a
computer does not lead to a patent being granted.
Furthermore, the amended directive contains new provisions on decompilation that will
assist software developers. While it is not possible to comment on whether any patent
application would be excluded from the directive, the directive, as amended, would not
permit the patentability of Amazon's 'one-click' method. As far as software itself is
concerned, it will not be possible to patent a software product. Software itself will
continue to be able to be protected by copyright.
With an EU directive, legislators will have scrutiny over the EPO and national court's
decisions. With, in addition, the possibility of having a definitive ruling from the
European Court in Luxembourg, thus ensuring a restrictive interpretation of the EU
directive and a greater degree of legal certainty in the field of patentability of
computer-implemented inventions.
Some concerns have been raised that the directive may have an adverse effect on the
development of open source software and small software developers. I support the
development of open source software and welcome the fact that the major open-source
companies are recording a 50% growth in world-wide shipment of its products.
In the amended proposal, I have imposed a requirement on the Commission to monitor the
impact of the directive, in particular its effect on small and medium sized
enterprises, and to look at any potential difficulties in respect of the relationship
between patent protection of computer-implemented inventions and copyright protection.
Many small companies have given their support to this directive, which will give them
more legal certainty as it offers the possibility of protection for their R&D
investment, and so assists in spin-off creation and technology transfer and generating
new funds for new investments.
Indeed recently, a small ten-person company in an economic black-spot in the UK
granted a licence to a US multinational for its voice recognition software patents.
Without European patent protection in this field, the small company could have found
itself in the perverse situation whereby its R&D efforts and investment would simply
have been taken by a large multinational company, who, with its team of patent
lawyers, would have filed a patent on this invention. The EU company could have been
faced subsequently with patent infringement proceedings.
Some lobbyists would like us to believe that having no patents is an option - it is
not. No patents would put EU software developers at a severe disadvantage in the
global market place, and would hand over the monopoly on patents to multinational
companies.
The work I have done is an honest attempt to approach this matter objectively, and to
produce balanced legislation, taking into account the needs and interests of all
sectors of the software development industry and small businesses in Europe. No doubt
there will be more debate and refinements to the legislation before a final text is
agreed under the EU legislation process.
At a time when many of our traditional industries are migrating to Asia and when
Europe needs increasingly to rely on its inventiveness to reap rewards, it is
important to have the option of the revenue secured by patents and the licensing out
of computer-implemented technologies.
Software development is a major European industry. In 1998 alone the value of the EU
software market was �39 billion. Most of this will be protected by copyright, but
genuine computer-implemented inventions must have the possibility, for the future of
competitiveness of our industry, to have patent protection.
Yours sincerely
Arlene McCarthy MEP
Christian Hache
[EMAIL PROTECTED]
2003-09-22
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