92002E3927

WRITTEN QUESTION E-3927/02

by Graham Watson (ELDR) to the Commission

(15 January 2003)

Subject: Patenting of software

What can the Commission do to ensure that its proposals for the patenting of software do not deprive internet users of the benefit of superior applications and operating systems developed through free and open source software?

Answer given by Mr Bolkestein on behalf of the Commission

(11 February 2003)

Computer software as such is excluded from patentability under the European Patent Convention and the laws of the Member States, and the Commission has no intention of changing this situation.

Thus, the Commission's proposal for a Directive on the patentability of computer-implemented inventions made in February 2002(1) is not intended to extend the scope of what may be patented. Rather, what it sets out to do is to establish uniform rules for patent offices and courts to follow in assessing the patentability of inventions involving apparatus or methods which involve the use of computer software. This is necessary because, while the Member States are bound by the European Patent Convention, it is not currently part of Community law, and in practice it is not always the case that the respective national laws are uniformly interpreted, especially on specialised points of detail.

A directive that does not change the overall balance of what is or is not patentable will not deprive internet users of anything they might otherwise have been able to enjoy. However, both users and developers of computer software, whether it be supplied as free, open source or under any other business model, should experience the benefits which will arise from the increased legal certainty and uniformity of practice that the directive should bring.

Certain of the amendments which have been discussed in the course of consideration of the proposal in the Council would produce still greater legal certainty by defining more precisely what subject-matter should be excluded from patentability on the grounds of making no technical contribution. The Commission has indicated that it would consider these amendments in the course of the ongoing negotiations.

There is moreover an important safeguard for software developers in Article 6 of the proposal, which will have the effect that the exercise of patent rights cannot interfere with the exceptions which are provided under Council Directive 91/250/EEC of 14 May 1991, on the legal protection of computer programs(2) by copyright in connection with the purpose of achieving interoperability.

Finally, according to Articles 7 and 8 of the proposal, the Commission is called upon to monitor and report to the Council and Parliament on the impact of computer-implemented inventions on innovation and competition both in Europe and internationally. This provision, which is cast in terms broader than mere consideration of the effects of the directive, provides a valuable mechanism for responding to unforeseen future developments in this sector.

(1) OJ C 151, 25.6.2002.

(2) OJ L 122, 17.5.1991.