EP debate on the Patentability of computer-implemented inventions, 23 September 2003

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President

The next item is the debate on the report (A5-0238/2003) by Mrs McCarthy, on behalf of the Committee on Legal Affairs and the Internal Market, on the proposal for a directive of the European Parliament and of the Council on the patentability of computerimplemented inventions (COM(2002) 92 − C50082/2002 − 2002/0047(COD))

Bolkestein (Commission)

09:43:56-09:53:10

Mr President, on behalf of the Commission, I wish to begin by thanking Mrs McCarthy, the rapporteur on this complex and technical but important matter, for her excellent work on this report. I should also like to thank the rapporteurs of the Committee on Culture, Youth, Education, the Media and Sport and the Committee on Industry, External Trade, Research and Energy, who have also made a major contribution to Parliament's work on this issue.

Computers are becoming ever more ubiquitous in our everyday lives and, quite apart from the box that sits in almost all our offices and quite a few of our bedrooms, microchips are now commonplace in everyday gadgets, such as electric razors, cars and microwave ovens. The question of how to define the patentability of computer- implemented inventions is thus becoming steadily more important, especially as such inventions are estimated to cover 15% of new patent applications. Indeed, the potential patentability of computer-implemented inventions is already accepted in current European Patent Office practice. The proposed directive does not aim to abolish this practice or extend it to cover the patenting of pure computer programs, as many opponents of the directive have claimed. The directive is not intended to cover the patenting of pure computer programs. Indeed, many have - falsely - claimed that the directive introduces for the first time the notion of patentability of software inventions in the European Union's patent practice. That is not the case.

I am, therefore, all the more pleased that the rapporteur has been able to steer past these misconceptions and produce a highly constructive report which seeks to build on the objective of the Commission set out in its
original proposal, namely to clarify the scope of patentability of inventions, which incorporates software, and to harmonise across the European Union, on the basis of existing practice, the proposal which seeks to achieve harmonisation and clarification. However, nothing will become patentable which is not already patentable.

It is in this spirit that the Commission would welcome the amendments to the text proposed in the report by Mrs McCarthy as a further step to clarifying that objective.

Opponents of the directive have mounted a very vocal and, at times, even personal campaign based on half- truths and misconceptions which play on legitimate concerns over competitiveness, especially for smaller firms. But the fact is that the proposal does not introduce software patents and will not have all the terrible effects that the prophets of doom would have you believe. It is a prudent, cautious measure which will clarify and, if anything, tighten the rules which already exist.

I am aware that a large number of amendments to the McCarthy report have been tabled, many of which seek to reintroduce ideas and themes already considered and rejected by the committee during the preparation of the report. There are some interesting points but, in the main, I am afraid that the majority of those amendments will be unacceptable to the Commission.

I am very concerned about this situation: many of these amendments are fundamental. There is a very real prospect that the proposal will fail if Parliament chooses to accept them. If that were to happen, I fear two possible consequences, neither of which, I suspect, has been foreseen by some Members of Parliament and neither of which would advance the objectives which seem to lie behind a number of the new amendments.

Firstly, in the complete absence of harmonisation at Community level, the European Patent Office and the various national patent offices would be free to continue their current practice of issuing patents for softwareimplemented inventions which may blur or even cross the line in undermining the exclusion from patentability of software as such under Article 52 of the European Patent Convention. The result would be not only continued legal uncertainty and divergence for inventors, but also a roll-back of the position adopted by almost everyone in this Chamber and, above all, the Commission itself, namely to maintain the exclusion of pure software from patentability. We do not want that. The proposal rejects that.

Secondly, in the absence of harmonisation at Community level, Member States are very likely to pursue harmonisation at European level instead.

Let me explain what I mean by that remark. Unlike many other fields, that of patents is unusual in that, as a result of the existence of the European Patent Convention and the creation of the European Patent Office, there is already a supranational patent system in place which covers the whole of the European Union and indeed beyond. This system can be operated independently of the Community's legislative process.

If we fail in our efforts to achieve harmonisation of patent law relating to computer-implemented inventions in the European Union, we may well be confronted with a renegotiation of the European Patent Convention. The process of renegotiating the European Patent Convention would not require any contribution from this Parliament.

The situation is clear: there is a single objective but a choice of means. Either we proceed using the Community method or we take a back seat and watch while Member States proceed by means of an intergovernmental treaty. It is clear that proceeding via this Parliament would give European citizens a greater say in patent legislation, an area which is so crucial to our economy.

McCarthy (PSE) (Rapporteur)

09:53:10-09:58:46
Mr President, the Commission proposal on the patentability of computerimplemented inventions before Parliament is not, as some opponents of the directive have suggested, a new phenomenon. Neither does it argue for the patenting of software, nor for extending the patentability and scope of protection in this area.

The fact is that some 30 000 patents for computerimplemented inventions have been handed out by the European Patent Office and indeed national patent offices. Computer-implemented inventions are present, as the Commissioner has said, in everyday household appliances, from safety devices such as airbags in cars to mobile phones, washing machines and an endless list of other devices with relevance going well beyond the traditional computer industries to the heart of our manufacturing sectors. Let us be clear: without this directive, patents will continue to be filed. Out of over 110 000 applications received at the EPO in 2001, 16 000 dealt with inventions in computer-implemented technologies.

In the USA, and increasingly in Japan, patents have unfortunately been granted for what is essentially pure software. An EU directive, by setting limits to patentability in this area, could stop the drift in Europe towards a US-liberal style of patenting software as such, and indeed of patenting pure business methods.

One oft-quoted example of such a bad patent is Amazon's 'one-click' shopping method. Clearly this technology is not new, nor is it unique, and patenting of software business methods such as this is not good for innovation and competition. It is unfortunate that the EPO has granted it a patent: this is an example of bad EPO practice.

Without a doubt computer-implemented inventions genuine inventions which, in some cases, are the result of 10 to 15 years' R&D investment - are important for the European economy. At a time when many of our traditional industries are migrating to China and the Far East, we need to rely on our innovation and inventiveness to earn our living. I have seen letters from small companies across Europe which are supportive of this directive. A small Belgian company employing 12 people has written to me saying that it needs patents to get a return on its investment, to grow its business and to ensure that others respect its technology. It is important for many European companies to grow their businesses through revenue secured by patents and licences. This is also the case for a ten-person company in the south-west of England, located in an economic blackspot with high unemployment. This company granted a licence to a US multinational for its computer-implemented voice recognition patents, which shows that in the world of global patents there can be examples of David meeting Goliath. Without patent protection the small company could have found itself in a perverse situation where its R&D efforts would have been free for the multinational company which, with its team of patent lawyers, would have gained the patent in this area. Consequently, the
European company would not have reaped the benefits and, indeed, there could have been an infringement of a patent owned by a multinational.

I have tabled amendments in my report to underline my opposition to the patenting of software as such. We want explicitly to exclude computer methods, algorithms and mathematical models from patentability, as set out in a new Article 4. I have attempted to produce balanced legislation that takes account of the needs of all sectors of the industry, not just one vocal sector that is against this directive.

I would be the first to agree that we need more debate on and refinement of the proposed legislation. I therefore ask the Commission to look at the crux of this debate: how do we get good patent law which rewards our most innovative companies for their investment in R&D while, at the same time, not allowing companies to use patents to abuse a dominant position, lock up technology and stifle innovation and competition? I therefore ask the Commissioner to look at these amendments tabled in plenary today. They are very clear in suggesting that we need to limit patentability to genuine inventions in Articles 2 and 4. We want to ensure interoperability to enable computer programmers to engage in reverse engineering practices and to decompile programs for experimental purposes without risking infringement or legal action. It is vital that we address the perception that patents are only for big business: small companies can, and do, gain from patent protection. However, to have a fighting chance in such a competitive business they need access to affordable patents and assistance with legal fees to protect and enforce their patents.

Other amendments seek to ensure that the granting of a patent does not allow monopoly or abuse of a dominant position. We also want to protect the open-source community which makes a vital contribution to competitiveness in the area of software development.

Therefore, I ask the Commissioner to give serious consideration to the amendments and to recognise them in the spirit in which they have been tabled, as a genuine attempt to ensure that Europe develops good patent law in the field of computer-implemented inventions. This does not mean rubber-stamping bad practice in Europe, but developing good practice for the future, good law, good patent examiners, and a quick death for applications that are clearly not inventions. We also want to ensure that multinationals do not dominate in our EU markets. We need patents in order to protect our own companies and investments so that they can be effective global players in this fast-changing and rapidly developing software-development market.

Plooij-van Gorsel (ELDR) (draftsman of the opinion of ITRE)

09:58:46-10:01:30:00

(NL) Mr President, Commissioner, ladies and gentlemen. First of all, I would like to comment that in the nine years that I have been working in this Parliament I have never been lobbied by any acquaintance so aggressively, so often, so impolitely or so freely. There must really be a lot at stake, although I can understand that people are worried.

The aim of this proposal is to harmonise the European regulations. At present there is legal uncertainty on what is patentable and what is not in the area of software. This is because the rules of the European Patent Convention are interpreted differently in the Member States and are not being tested. This legal uncertainty has adverse effects in terms of the operation of the internal market. The Committee on Industry, External Trade, Research and Energy is therefore positive about the aim of this proposal: recognition of the patentability of computerimplemented inventions and more transparent rules. It is illusory to think that no patents have been granted for software in Europe up to now. The European Patent Office has awarded more than 30 000. The directive now being proposed will not make patents for computer programs possible as such and will thus restrict the existing practices of the European Patent Office. In general terms, nothing will be made patentable that was not patentable already. The Committee on Industry, External Trade, Research and Energy is of the opinion that the directive must be strictly limited to unambiguous cases. The condition of technical innovation is essential. This is characteristic of an invention, as opposed to an idea. Unlike in the USA, we want to prevent so-called trivial patents being awarded, for example on business matters. The possibility of linking equipment in order to achieve interoperability is a method of achieving an open network and preventing the misuse of dominant positions. I am therefore asking you to support the standpoint of the Committee on Industry, External Trade, Research and Energy, article 6A of the report, and of course the other amendments as well.

Finally, I am asking for your support for the introduction of a grace period. This will prevent an inventor from being cheated out of his invention if he publicises it in order to sound out interest in the market shortly before applying for the patent.

Rocard (PSE) (draftsman for the opinion of ITRE)

10:01:30:00 - 10:04:59:00

(FR) Mr President, Commissioner, this directive and this debate are horrifyingly complex, and also doubly complex, in both legal and computing terms. The stakes, however, are extremely high: in economic terms, tens of billions of dollars, in philosophical terms, respect for human knowledge. Throughout the 6 000 years of our history, it is by means of copying that the enormous body of human knowledge has increased. The prerequisite was that access to the products of science, music, mathematics or of any other field should be free and without charge. Copyright compensates the author without calling these principles into question. When individuals use materials or harness natural forces, the costs change, the remuneration required is much higher, and patents make such remuneration possible by prohibiting the unremunerated use of the invention. A piece of software is nothing more than a collection of mathematical formulae; the creation of new software can use hundreds of pieces of existing software. Prohibiting or slowing down this creative development would constitute an attack on the dissemination of knowledge and nevertheless, in future, human knowledge will increasingly take the form of software.

The 1972 Convention prohibits the patenting of any software but the needs of big business, which has taken advantage of the vagueness of definitions, have led to a surge in the number of such patents. The legal position of these thousands of patents is unclear and this is extremely dangerous for millions of individual creators or small businesses. You were right to want to put an end to this. We need a directive and your draft provides a good working basis, as you reiterated this morning. You were right to insist and to write that this is not about extending the scope of patentability, as you stated in some quite recent articles.

We therefore support your motives, Commissioner, but as we have just heard, many of us, including my own group, consider that you have not followed your ideas through to their logical conclusion. You conclude your recent article by this admirable phrase which I applaud: ‘existing users of free software can continue to use this free of charge, regardless of future patents filed in this area’. Well done! This is what we want to hear. The technical provision of your directive, however, does not guarantee this freedom.

We have, therefore, tabled amendments that make a distinction between an invention and a pure product of the human mind. The reference to materials and natural forces is not universally accepted and that is the subject of this debate. And yet this reference is the only one possible for preventing companies that are powerful enough to create and protect an enormous portfolio of patents from capturing an infinitely expanding amount of knowledge.

When I read your words, Commissioner, I had the pleasure of thinking that you will agree with us and that you will thank us for having clarified your text.

Wuermeling (PPE-DE)

10:04:59:00 - 10:09:36:00

(DE) Mr President, Mrs McCarthy, ladies and gentlemen, I would like to start by expressing my warm thanks to the rapporteur for her excellent work on this report. Mrs McCarthy, you had to overcome two major problems not usually faced by rapporteurs. Firstly, this is a highly complex topic, involving both legal issues and complicated technical matters. Secondly, you also had to deal with a sometimes very aggressive, but sometimes also very irrational lobby, yet you ultimately managed to establish an ongoing dialogue, even though you undoubtedly found this difficult at times, as the rest of us did occasionally as well.

No, ladies and gentlemen, we do not want any general patenting of any software. We do not want to strengthen the market power and monopolies of the software giants. No, we do not want to threaten the commercial bases of small and medium-sized software companies. And no, we do not want to undermine the successful open source community and Linux technology in any way. So what do we want? We want to make a sensible distinction between computer-implemented technical inventions, on the one hand – which must of course be patentable – and pure software for ordinary data processing, which should not be patentable, on the other.

It is true that in the past, the European Patent Office has handed out far too many patents far too lightly. Mrs McCarthy has cited the most recent example of Amazon’s 'one-click' shopping method. However, only the legislator can bring this harmful trend to a halt. It makes no sense whatsoever to be opposed to this directive, because then these practices will simply continue. I am therefore at a loss to understand how anyone – especially the open source community – can be opposed to any form of directive in this area, as this would simply allow the current practice, which this community views very critically, to continue.

On the other hand, it is also true that an invention, in the classical sense, deserves to be protected by legislation. The inventor has invested time and money in his invention, and it is of course quite unacceptable for the state to stand and watch while others exploit his ideas commercially. In this area, the issue of the European Union’s competitiveness must therefore also be discussed, for if we go so far in our directive that virtually every software element results in an invention no longer being patentable, we will be at a major disadvantage in the global competition for innovation. We should be aware of this.

The proposal by the Committee on Legal Affairs and the Internal Market improves the directive on key points. It limits the tendency to issue patents too casually, which has been criticised here, and it does so more effectively than the Commission’s original proposal. The new Article 4A, with its negative examples, creates watertight protection against the patenting of software, because we are saying quite clearly that pure software cannot be patented, business methods cannot be patented, and algorithms and data processing cannot be patented either.

What we need is a European patent law to promote innovation, one that contains clear and sensible rules and draws a watertight border against pure software. This directive achieves these goals.

Medina Ortega (PSE)

10:09:36:00 - 10:12:13:00

(ES) Mr President, the Socialist Group does not believe that the amendments approved in the Committee on Legal Affairs and the Internal Market reflect the current situation in the field of the patentability of computer-implemented inventions.

We must work on the basis that this is not a proposal for a Directive for patenting computer programs. The system for those, as the rapporteur for the Committee on Culture, Youth, Education, the Media and Sport, Mr Rocard, has pointed out, is already regulated by means of a Community Directive. We are talking about the field of intellectual creation, which have very different rules from those which govern the field of industrial protection. Industrial protection, as Mr Rocard pointed out, relates to the application of industrial uses, and we already have well established rules.

What has happened here has been a very dangerous tendency on the part of United States jurisprudence, which has allowed purely intellectual creations, which do not have industrial applications as such, to be patented. The attempt to establish a monopoly on computer programs by means of patents has caused justifiable indignation on the part of all those who are currently using the open network in Europe, and whose possibilities for action would be prejudiced. It would represent a backward step in terms of European progress towards the creation of an information society as laid down in the Lisbon Declaration.

The Socialist Group therefore believes that the proposal for a Directive must be substantially modified, establishing very clear limitations, so as not to undermine the nature of industrial patenting.

We cannot end up in a situation here like the United States situation, in which there are currently certain companies which in practice are able to prevent all work in the field of computer programming. As Mr Bolkestein has pointed out, the European Patent Office has allowed itself to take this dangerous route to a certain extent, as Japanese jurisprudence has also done, for example. And that is precisely why we need a Community Directive.

We believe that intellectual property in the field of computers must be maintained and that we need a Community Directive which just regulates industrial applications, not computer programs, and which regulates it in a sufficiently clear way to prevent us from taking that route, so that the jurisprudence of the European Patent Office does not drag the countries of the European Union along the road of the patentability of computer-implemented inventions as such.

Manders (ELDR)

10:12:13:00 - 10:15:52:00

(NL) Mr President, Commissioner, ladies and gentlemen, the subject we are discussing here is a difficult subject. There is a big difference between copyright and patent law. That this difference is difficult to define is evident from the amount of lobbying we have been experiencing. I therefore thank Mrs McCarthy, who has managed to clarify the line. Particularly in her briefing to aggressive lobbyists who I think have incorrectly interpreted this and who want to achieve exactly the opposite of what is intended with this directive. That is regrettable.

The aim of this directive, in my view at least, is to prevent legal uncertainty. Mr Medina Ortega and many other fellow MEPs have already given examples of this. The European Patent Office in Munich is already using the United States method at the moment and is already patenting software as such. I believe that it is necessary to put an end to this by way of this directive, if we get it. I think that this is also what the lobbyists who want this directive voted down want. I therefore think it is odd that they are calling for this directive to be totally rejected. After all, this would make it possible for the US methods referred to by some fellow Members to remain in place and the Patent Office to continue to issue patents for thousands of software methods. I think that would be a bad thing.

We have submitted a number of amendments. A large number of these have been approved by the Committee on Legal Affairs and the Internal Market in the debate on the McCarthy report. A large proportion of them relate to the protection of small- and medium-sized enterprises, while the purpose of others is to achieve improved definitions. I therefore think that the report before us is already suitably balanced. I would like to see a number of improvements implemented, however. Among other things, I am referring to the grace period which my colleague Mrs Elly Plooij-Van Gorsel has already mentioned. I think it would be a good idea to establish this in the directive. I would even like to call upon the Commission to go further and include a grace period in all directives pertaining to intellectual property rights we may get in the future. It seems to me to be a good thing for the not-so-powerful inventors in particular to be allowed such a period of time so that they can find out whether there is a market for their products.

I have also submitted an amendment concerning new inventions with software that is computer-implemented and which – to put it very clearly – is not patentable per se. This amendment intends to set a limited period for new inventions, if you separate them from the software, which – to put it very clearly – is not patentable. Why? Because with a patent application, even if you do separate it and even if the product is not patentable per se, you have a number of legal procedures at your disposal with which you can keep businesses out of the market for a long time. I think that would be a bad thing.

I am also of the opinion that such an approach does not conflict with the non-discrimination policy of TRIPS as it does not exclude a particular sector. I think that it will simply be sending a clear signal.

Now a few words about interoperability. Interoperability is necessary, but we must make a clear distinction between standalone inventions and inventions intended for use in conjunction with other inventions. We have applied this distinction in our amendment. I call upon fellow Members to support the directive in any event, in order to prevent legal uncertainty in the future.

Frahm (GUE/NGL)

10:15:52:00 - 10:19:19:00

(DA) Mr President, Commissioner, I should like to thank the rapporteur for the huge amount of work she has done. It does sound as if we, in actual fact, all have the same intentions. I should like to praise the Commission, and also the rapporteur, for having emphasised what the intentions are, namely to create still more development and still more investment in small- and medium-sized enterprises in this area.

What is odd is the simple fact that small and mediumsized enterprises are not pleased with this directive when those are what the intentions are. Why are they not shouting with joy and, upon being consulted, using their answers to praise the proposal for a directive? Why are small and medium-sized enterprises not demanding that we implement this directive in one go? Why are all the software industry’s innovators not demanding that we introduce this directive at breakneck speed? Why are they doing almost the opposite?

That should, I think, in any case give rise to a certain amount of doubt as to whether we are in actual fact doing what we say we are doing. The ostensible purpose of the directive is to ensure that rights can be enforced. Being able, however, to enforce rights in this area or, perhaps, to protect oneself against others’ maintaining that their own rights are being violated is so expensive that it is transparently obvious to small and mediumsized enterprises that this is not a method of progress for them. Legal cases of this type cost approximately one million euros and are not the kind of thing that small and medium-sized enterprises can get directly involved in.

We say that we shall not extend the existing provisions. That, I think, sounds wise, especially since the European Patent Convention does emphasise that software cannot be patented. Let us, therefore, stick with that. We are not in fact without rights now. We have a legal basis in the form of the European Patent Convention. The fact is, moreover, that the European Patent Office has extended the scope of its activities slowly and gradually. If we were now to respond by legalising that extension, we should in fact be heading in the wrong direction. We should then be heading in a direction in which it was more and more usual to demand patents on software, but not on pure software. My question is therefore: how pure must software be before it is pure? That is a question I have been in no position to obtain a clear answer to. Moreover, it is perhaps precisely such questions that should be clarified before we take definitive action in this area. I very much want to invite reflection. I very much want to recommend that we allow doubts to be heard and that we listen to what the small and medium-sized enterprises in Europe have to say in this area.

I very much want to invite reflection. I very much want to recommend that we allow doubts to be heard and that we listen to what the small and medium-sized enterprises in Europe have to say in this area.

Echerer (Verts/ALE)

10:19:19:00 - 10:23:02:00

(DE) Ladies and gentlemen, I will try to be brief, keep to the time available and not repeat anything that has already been said. I will therefore begin by stating that I support, wholly and unequivocally, everything that has been said by the draftsman of the Committee on Culture, Youth, Education, the Media and Sport, Mr Rocard. My group and I support the thrust of this directive, just as Mrs Frahm has already said.

You wanted to create legal certainty, and that is what we want as well, yet the Commission is wielding its rod against this directive’s opponents and critics. I almost heard a threat in your words, Commissioner Bolkestein! None of us here is talking about software patentability here, oh no! We are talking about computerimplemented inventions based on software. You claim, and I quote, that opponents of the directive – I repeat, critics of this directive – have mounted a very vocal and, at times, even personal campaign based on half-truths and misconceptions. In fact, what we tried to do was to avoid the massive lobbying and find some neutral and objective legal experts who could explain this very complex subject matter to us. However, there is one simple question to which I have not yet heard an answer from you. Even if only a tiny component within a solution – and after all, software does consist of a multitude of solutions – in a computer-implemented invention is patented, it is patented and I cannot use it freely. As Mr Manders has said, we are running up against the border between copyright and patentability. It is a difficult problem and I think that the proposals that have been devised in the opinions by the Committee on Industry, External Trade, Research and Energy and the Committee on Culture are the basis for our decisionmaking. By ‘our’, I mean the critical members here in this committee who want to pursue the same approach as you, Commissioner Bolkestein, but who are perhaps going further and thinking it through. Possibly – as many legal experts have explained – this directive will not create any more legal certainty. It may close a few loopholes, but open up others. Let us be honest for once, ladies and gentlemen. We all know the reality of the market. We know how someone can use a patent as an instrument of market dominance and even as a weapon against his competitors, if he chooses to do so. We should think very carefully about how we can protect both investment and innovation here.

We have a copyright directive dating from 1991; perhaps we should have revised it. Perhaps there are points that can be brought up to date in legal terms. If we had arrived at a conclusion based on the European Patent Convention in this matter, you would have my full support. Nonetheless, I think the proposed amendments make a contribution here. Last but not least, the European Patent Office and the unfair patents that may have been granted or that will be granted in future are primarily the responsibility of the signatory states. It is laudable that Europe is showing responsibility here, but taking the first step on the basis of the European Patent Convention would have been enough, and then we could have given the matter further thought.

Mussa (UEN)

10:23:02:00 - 10:25:49:00

(IT) Mr President, ladies and gentlemen, information technology is the backbone of the future development of every country in the world and it is based on technology – hardware – and science – software.

At present, all technological innovations are protected by their patentability; but software development gives rise to copyright which protects its intellectual property. To make this clearer, let me draw a parallel with the music world. An electronic computer is an instrument which is used to create music, not composed of notes but of codes and commands, alternating with rhythm and a composed sequence, made by the developer, giving rise to different actions and results. What would happen to music if, one day, you could patent scales, chords, trills and everything else that makes the world of classical music so rich and exciting?

Information technology would suffer the same fate: with patents, every command, every sequence of codes and algorithms would be protected, and the market transformed into a web of restrictions. If all existing patents had to be validated, then all software development would be restricted, limited and increasingly inhibited, since all small and medium-sized enterprises and programmers would be forced to buy rights or licences and virtually pushed out of the market.

The intellectual property of a painting or a book is not protected by patenting the subject or argument, but by guaranteeing its distribution subject to copyright laws, stimulating other minds to produce original works, similar but not copies, improving, where possible, on the original work or reinterpreting it on the basis of different or more interesting models.

An expanding market, open to new horizons of lively criticism and fantasy, such as the European market, cannot allow itself to impose more regulations which would, in actual fact, further constrain development in the European nations.

We firmly believe that the McCarthy report cannot be accepted, since supporting it would seriously jeopardise the technological growth and development which can be generated only where people have a free spirit and mind.

Andersen (EDD)

10:25:49:00 - 10:27:59:00

(DA) Mr President, I am a trained architect and have worked as an architect all my life. The problem we face in this case is like that which would arise from the introduction of patents in my own field. Let us imagine that patents were taken out on stairs so that, in future, approval was needed and a licence had to be paid for before a house with stairs could be designed. In a way, that would be a very good thing, since we should not then have all these wretched skyscrapers. It is a grotesque idea, however, that an individual colleague of mine or a major firm within my industry should be able in some way to obstruct all development. In the design and architectural work I have done, I have of course been protected by copyright law so that my work cannot be plagiarised.

In actual fact, it is the same with software and all other artistic activity which can of course be compared with the design of software programs in which the design itself is protected by copyright law. Permitting the patenting of software in the EU would have negative consequences for the consumer, small and medium-sized enterprises, the whole ‘open source’ movement and innovation within the industry. One would have to be more than usually naive to believe that innovation in the EU were being encouraged by allowing an American firm to take out a patent on the use of the special Danish letters æ, ø and å in domain names, or that it would be of benefit to small and medium-sized enterprises if, before they began to develop their product, they had to invest in a department concerned with legal matters relating to patents. It should not be possible to patent either particular items of software or software per se.

Cappato (NI)

10:27:59:00 - 10:32:53:00

(IT) Mr President, I would like to thank the rapporteur and the Commission for the work they have carried out in all its difficulty. The Radical Members of the Bonino List will vote in favour of the amendments seeking to restrict the margin of software patentability and will vote against the proposal as a whole if the main amendments are not adopted. Why? Because we do not believe in the need for European harmonisation, perhaps? Not at all. We support the Commissioner and the rapporteur in taking note of a situation whereby the European Patent Office has actually received thousands of applications for software patents.

In the light of such a clear violation of the spirit and letter of the European Patent Convention, what was needed, what would be needed, what is needed is clarification and confirmation that software is nonpatentable. Whilst the distinction between the patentability of software as such and the patentability of software as part of a computer-implemented invention is a subtle one - which means that we are running the risk of getting into a mess - the solution is, I believe, very clear: if a piece of software is an integral part of an invention, it is this invention that is patentable and is patented, not the software. It is, however, already possible to do this through laws on computer implemented inventions that are defined as such.

Software is excluded from patentability for a very specific reason, for the same reason that mathematic formulae are excluded, for the same reason that theorems are excluded, for the same reason that musical formulae and symphonies are excluded: these are all part of the field of ideas, of the organisation and transformation of ideas. We know that a task that can be performed by software can be transformed into countless different types of codes by countless programmers using different programming languages. This is what makes patenting software dangerous, and even more dangerous if the patent is to last for 20 years, which is a geological era in software development. Independent programmers and programmers in general would now be authorised to use a function patented in 1983, the early history of computer software. This is the danger.

I do not believe that it was necessary to venture into the realms of complex formulae to define the distinction between software as such and software as a part of computer-implemented inventions. It would have sufficed to keep computer-implemented inventions as patentable and ensure respect for the regulations excluding software from patentability, which, in any case, provides for protection by copyright.

Hence our support for the amendments, in particular those on interoperability and those on the need for natural forces if software is to be considered an invention. I also believe that we cannot adopt the proposal now because, if we do, the States will do their own thing. We must try to do the best we can here. I also believe that the involvement of hundreds of thousands of people who have all expressed their opinion on this issue individually should be seen as a democratic contribution, not an inconvenience.

Fiori (PPE-DE)

10:32:53:00 - 10:36:17:00

(IT) Mr President, ladies and gentlemen, I must admit that, of the many subjects dealt with in this term, the subject that we are dealing with this morning has, for me, been one of the most complex, and I must acknowledge the enormous amount of work that Mrs McCarthy has carried out.

I do not have all the answers and I understand the Commission’s need - as Commissioner Bolkestein explained clearly - to speak on this issue. I will, nevertheless, make a few remarks of a general nature, starting with the premise that we are dealing with an issue where identifying the subject of legal protection, and thus converting computer terms into legal terms and concepts, can already, in itself, be an extremely complex matter.

Now to a second point: we have, of necessity, to deal with a complex international legislative framework and, if we look at what is happening, not just in Europe but in the United States, in particular, the patent system is proving to have very many limitations, above all very many practical limitations. Having said that, I believe that this directive, although there is room for improvement, has addressed a serious political issue facing the European Union. We need to stand apart from the US positions and we may well also have to convince our main economic partners of the need for a measure harmonising all aspects of the legal protection of software in a form different from the current form. In this, we are not starting from scratch, because the characteristics on which patents are based have already been clearly identified in the TRIPs agreements. We therefore need to insist on the idea - from which we must not be moved - that software patents are only granted on solid grounds. We have seen an abnormal number of applications for software patents in the United States, and there are probably just as many in the EU, and this makes it clear that we are not dealing with genuine inventive activity and that we cannot afford to grant every type of application a patent. Furthermore, with the number of patent applications increasing uncontrollably, it will become virtually impossible to ascertain properly from the archives whether the application will genuinely lead to a new invention.

Of course, there are some legal aspects that could be improved upon; there are some discrepancies with Directive 91/250/EEC; we could certainly have reflected more from a legal point of view on Article 52 of the European Patent Convention, because one thing is certain: we will be forced to return to this issue because - as many Members have stated - development is so rapid that the European Union will have to adopt a measure in the next few years, when we will be able to revise our positions.

Gebhardt (PSE)

10:36:17:00 - 10:38:20:00

(DE) Mr President, ladies and gentlemen, it is rare for our legislative activity to be the focus of so much public attention at such an early stage as Mrs McCarthy’s report. That has certainly not made it easier for her to complete her very demanding task, but it has generated a flood of information and arguments. Much of it was important and very informative, both for the rapporteur herself and for all of us. However, mountains of paper were destined for the waste paper basket from the outset.

Our intensive work and the fact that it was monitored so closely by stakeholders has produced the compromise which I would encourage you to support and which is reflected in my group’s proposed amendments. It aims to release us from the pitfalls contained in Article 2 and Article 4, where a new definition of ‘technical contribution’ opened the way for the patenting of software.

Ladies and gentlemen, this loophole has now been closed to some extent. Admittedly, I would have liked to have achieved more, and the small and medium-sized enterprises in particular had hoped for more. Above all, I do not believe that we have made it sufficiently clear that we do not simply want to restrict software patents. We actually do not want to grant any more of them in future at all. This is because software patents make life particularly difficult for small and medium-sized enterprises, to whom we have always pledged special protection and support. To put it another way, anyone who patents software is playing into the hands of big business, not helping those with great intelligence. Let us therefore send out a clear message which goes beyond this compromise solution. Say no to software patenting!

Boogerd-Quaak (ELDR)

10:38:20:00 - 10:40:59:00

(NL) Mr President, ladies and gentlemen, Commissioner, I share the opinion of Messrs Rocard and Cappato and other fellow Members who think that software as such should not be patentable. Article 52 of the European Patent Convention excludes software as such and states that ideas and theories are not suitable for patents. It must be about technical innovation, and that is precisely the heart of the problem we are all facing. It is also the heart of the directive. The Patent Office recently concluded that all programs that run on a computer are technical by definition. Under the Patent Office’s current practices, it has already awarded more than 30 000 patents, many of which are not actually legally valid. Mr Rocard has rightly mentioned that there is a difference between an invention based on the forces of nature and a product of the human intellect. I am of the opinion that we must therefore support some of the amendments, which have also been submitted to the Committee on Industry, External Trade, Research and Energy and also the amendments submitted to the Committee on Culture, Youth, Education, the Media and Sport in the past. These tighten the definition in such a way that, in my view, software as such is excluded. If these amendments are not accepted, I will vote against the directive.

There is a good deal of disquiet among small- and medium-sized enterprises and the open source movement. Human knowledge and the dissemination thereof is an important freedom which we in Europe must preserve. This must be done if only on account of human dignity, but not solely for that reason. We will be even more competitive than the United States and the directive will have to rule out the US situation completely. I therefore hope that many of you will vote in accordance with this line so that we will get a directive that is workable.

Caudron (GUE/NGL)

10:40:59:00 - 10:43:08:0

(FR) Mr President, ladies and gentlemen, this morning’s debate follows a turbulent period in which the world of computer users, inventors and innovators has been fighting tooth and nail to protect its right to difference, freedom and creativity.

At the heart of this debate is patentability, with its advantages (when the patent rightly protects the inventor) and its major disadvantages, which involve often conservative monopolies being established to the detriment of young creators. Personally, I still support this movement, which I believe follows the same approach as all alternative movements fighting for a less rigid and less commercial society.

Since this debate opened, we have scored points by tabling proposals for amendments that substantially improve the original draft. Recognising that in order to be patentable, a computer-implemented invention must have an industrial application is a step in the right direction. A statement to the effect that patents must not be granted for simple computer programs was needed. Nevertheless, we cannot ignore the shades of meaning that have been introduced as well as the excessive vagueness. At this point in the debate, even at the risk of seeing these amendments fail to receive the vote or then fail to be included, we must state that not all problems have been solved, by any stretch of the imagination.

I personally shall, therefore, be vigilant during voting and I remain willing to vote against the draft if the improvements prove to be nothing more than a cosmetic attempt to conceal the hold that large companies have over creative minds. In this regard, Commissioner Bolkestein’s last sentence, which smacks of blackmail, does nothing to alleviate my deep suspicion.

MacCormick (Verts/ALE)

10:43:08:00 - 10:45:23:0

Mr President, many of the amendments - and certainly all those to which my group has given its name - are clearly and directly aimed at preventing any leakage from this directive into the patenting of computer software itself. That is very important to us.

It is quite clear that a body of intellectual property law which protects computer software by copyright, and leaves patents for other purposes, works well from the point of view of the software industry, and of the creative minds which develop computer software. Neither Mrs McCarthy nor Mr Bolkestein disagrees with me on this point. Nobody wants a leakage resulting in the patenting of pure software.

There is some risk that genuine inventions which involve a software element would not be adequately protected without a new directive. So be it. But then the burden of proof lies with the Commission to show us which of Parliament's proposed amendments would over-protect us against the risk that we see and under-protect against the danger which the Commissioner is anxious to avoid, namely the danger of 'real' inventions not being adequately patentable within the European Union.

The strategy of those of us who are amending this directive is to prevent any leakage into software patents as such. That would be a real disaster. We have been lobbied heavily about this, but we have been lobbied heavily because we have very many able, hardworking constituents who see the leakage which I have mentioned as a threat to their livelihood. Let us be absolutely sure that what we send back from this debate and from tomorrow's vote - and Mrs McCarthy has worked very hard on this report - really does provide a completely watertight seal against such leakage and protects what Mr Bolkestein wants to protect without creating the danger which so many of us have been taught to apprehend by our constituents.

Van Dam (EDD)

10:45:23:00 - 10:47:28:00

(NL) Mr President, Commissioner, our starting point is also that we do not think that the patent is the right way to protect computer-implemented inventions. Up to now, copyright has offered reasonable protection for this. With the awarding of patents in this area we are running the risk of actually discouraging innovation and putting small- and medium-sized enterprises at a disadvantage, something that other people have already pointed out.

Regrettably, this discussion has actually been overtaken by the practices of the European Patent Office. For years this office has been issuing so-called software patents, and these have already been enforced up to the highest international level.

The proposal that is now before us is really a sort of emergency measure designed to keep the awarding of patents in Europe within certain limits. I have some sympathy for that. The question is whether there is any point in doing so any more. The European Patent Office has already awarded 30 000 patents on the basis of regulations which go further than the present proposal for a directive. As far as that is concerned, this directive comes too late in the day.

On the positive side, the directive will lead to harmonisation and clarity in the Member States. The danger that small, innovative businesses will lose out to the monopolies of the big ones will not go away, however. This is inherent in the patent system. We are sorely aware of this. We therefore find the fact that the Commission and the rapporteur are laconically bulldozing over this here disturbing. It proves that they have little affinity with European small- and mediumsized enterprises, the backbone of our economy.

Gollnisch (NI)

10:47:28:00 - 10:50:23:00

(FR) Mr President, ladies and gentlemen, what is the real issue here? The real issue concerns protecting the intellectual property that is the result of innovations in computing. There are two conflicting legal procedures in play: on the one hand patentability and on the other, copyright. We and I believe the vast majority of speakers in this House, Commissioner, believe that the standard form of protection is copyright. Whereas journalists or novelists know that their text is protected by copyright, they cannot then claim the syntax, the morphology, the vocabulary and the grammar of the language they are using as their own. The same must apply to software, because software also uses language.

You claimed in your statement, Commissioner, which was extremely aggressive and even threatening with regard to the criticism inspired by your draft directive, that software as such was not covered by patentability. You must not, however, treat people like idiots. Furthermore, your directive is at best ambiguous, because your definition of a computer-implemented invention in Article 2(a), can just as easily apply to software. Of course, in Article 4 of the draft directive, you appear to limit patentability to inventions, and I quote, ‘susceptible of industrial application’. This is a concept, however, that you have been very careful not to define. We all know that US multinationals have managed to patent aspects as trivial as clicking a button to close a window on a screen, or the idea of alerting users by means of a tune to the fact that they have received an email, or even using a colour to underline words that need to be corrected when a text is revised – and textual revision is susceptible of industrial applications in typography or printing. I will also mention the electronic ‘shopping basket’ used in ecommerce. Young creators have even managed to patent the 35-hour working week imposed by the previous government of my country.

Why, then, is such a text being proposed in this Parliament? Do the interests of the European Patent Office, which is funded according to the number of patents filed, have no part to play in this? The fact is, Commissioner, that there was a strategic choice to make: either to fall in line with the patenting practice of US multinationals – which is what you appear to be starting to do – or to protect the specific characteristics of European law and refuse to let abusive patents have any effect. You have clearly not taken the latter choice and it would be reasonable to believe that your directive does not tally with the legitimate interests of European creators.

Harbour (PPE-DE)

10:50:23:00 - 10:53:54:00

Mr President, in all my time on the Committee on Legal Affairs and the Internal Market, this is the first time that I can recall that one of our major directives has received such prominence in the Parliamentary agenda. I hope that trend will continue. In fact the report was called so early that I was not here on time, and I apologise to both the Commissioner and the rapporteur for not being here to hear their speeches. I have listened with interest to what Members have had to say and at this stage in the debate I would like to reflect on what this report is really all about. We have an objective to create the most dynamic and competitive knowledge-driven economy in the world. Patents are an indispensable part of that. I want to remind all of you here, and everyone listening to this debate, that there are hundreds of thousands, maybe even millions of people across the European Union working on inventions that have been protected by patents. That patentability has stimulated investment to develop those inventions into products that the world wants to buy. What we are talking about here is a regime that is legitimately going to encourage invention in all fields. Part of the problem we have had in dealing with this is that a lot of the issues that have been raised have come from one particular direction of creativity: writing elements of computer programs. Actually, patents are about protecting a genuine invention, a new way of doing something, something that is - as this directive says - susceptible of industrial application. I would like to remind colleagues that when you apply for and are granted a patent it does not have to include all the details. In today's world almost every technical and industrial innovation requires some form of computer-aided activity. Why should we deny protection to people who are working on inventions in that field? The Commission has made a persuasive case, supported by a lot of research, that we need a consistent framework so as to ensure that people know that they can get patents for these types of invention. They will also know that they cannot get patents for trivial business process inventions that should not under any circumstances be patented, and will be discouraged from applying for them.

We know this is difficult to do, which is why we have argued about the wording. That is why Mrs McCarthy has done such a good job as rapporteur on this directive. She has consistently seen the importance of this in a knowledge-driven economy and has led us in looking at ways of improving and making this work better. She has not allowed herself to be diverted by all the noise around her.

I hope that you will support this directive, and that you will support the thrust of the Legal Affairs Committee's amendments. There will be some other amendments but I hope you will resist some of the complicated and abstruse concepts that have been put forward by some people which will make an inventor's life far harder. It is invention and creativity that we are here to support and nothing else.

Berenguer Fuster (PSE)

10:53:54:00 - 10:56:36:00

(ES) Mr President, this is a political chamber and I believe that as a political chamber the first question we should consider, as should the Commission, is why this proposal has caused so much commotion and so much reaction.

It is not fair to discredit any person not agreeing with it and to say that there has been aggressive opposition on the part of lobby groups. Because, at least on the part of those who have been in contact with me, university teachers of information technology, experts in patents and industrial property and also representatives of small businesses, what I have heard, rather than aggression, has been concern; concern at the way things are progressing and the danger being faced in terms of the possibilities for inventions.

The people who advocate this initiative tell us that the only intention is to unify practice on the part of the national patent offices, in a field in which there have recently been contradictory resolutions. And that is true; what is not true, or at least what is not certain, and please allow us to accept this intellectual doubt at least, Commissioner, is that this proposal for a Directive is going to resolve the problems which the intention is apparently to resolve.

Because it is very easy to do so, the practice of the European Patent Office, in a break with what was the traditional approach of European law, has tended towards a practice very similar to that in United States law. All the honourable Members know, all the experts know, that European law demands that an invention must be of an industrial nature if it is to be patentable, which means that not only must the method be industrial, but also the result of the product must be industrial, while in US law it is sufficient for it to have a useful application.

This has allowed certain innovations and certain patents of software programs. We therefore insist on this point. It makes no sense to say that with the report of the Committee on Legal Affairs and the Internal Market and the Commission's proposal these problems are resolved, because they are resolved by means of the amendments approved in the Committee on Culture, Youth, Education, the Media and Sport and in the Committee on Industry, External Trade, Research and Energy. Therefore, if the amendments such as those proposed by the Committee on Industry and the Committee on Culture are not approved, it will be very difficult for us to support this proposal.

De Clercq (ELDR)

10:56:36:00 - 10:58:01:00

(NL) Will we all still be able to use our computers in the future without having to pay patent rights to do so? This is the question that is occupying all our minds. What we do not want is the United States situation, one in which patents can be granted on simple computer languages or software. We are, however, less able to agree with each other when it comes to describing this. We also often lag behind reality; you just have to look at what is happening at the European Patent Office. We cannot therefore afford to postpone this any further and must seek proper clarification of what is patentable and in particular of what is not. Personally I think that the right balance has been found in the standpoint of the Committee on Industry, External Trade, Research and Energy and in the amendments put forward by my colleagues Mr Manders and Mrs Plooij. Any form of software is explicitly excluded from patenting. Only genuine inventions must be patentable. They must thus involve a worked-out technical process with industrial applications and not simply an idea or a language. The piece of technology that contains this new technical process must then be protected. Not the fact that you need a computer to use it.

Fraisse (GUE/NGL)

10:58:01:00 - 11:00:58:00

(FR) Mr President, Commissioner, ladies and gentlemen, there are a number of things I do not understand. I am not sure, for example, that I understand the reasons for deciding to draft this directive. If this is simply a problem for the European Patent Office and for applications for patents, I believe that this is really quite a limited starting point.

What is completely beyond me is that the European Commission, which is so concerned about preventing concentrations in industry, is proposing – if we are to believe a number of experts – support for industrial concentration. This appears to contradict the Commission’s objectives.

Nor do I understand the amnesia we are seeing here with regard to the disastrous directive on patenting life. No one knows how to implement this directive and its validity is universally questioned. Can one patent the cells of a leaf without patenting the leaf itself? The problem of software and of technical contributions is identical. The legal uncertainty we faced with regard to the directive on patenting life reappears in connection with the patenting of software, programmes and technical contributions. I am struggling to find the right words because the directive gives no clear definition of a technical contribution. In light of these uncertainties, I find it hard, Commissioner, to understand what is happening here.

Mr Rocard referred to 6 000 years of history, but history has speeded up as rapidly in the field of biotechnologies as in those of software and computing. Are we going to be able to pursue these rapid developments when economists are predicting that we will have a number of problems to face? In the field of pharmaceuticals, we are told, it is easier to see what is an innovation and it is easier to determine what is covered by copyright or a patent. With regard to software, it is still extremely hard to tell. Publishers and teachers fear that this type of directive threatens the knowledge-based society, transparency and the circulation of information. I thought that the European Commission and Europe had made preventing such threats one of their aims. I do not understand what is going on here.

Dhaene (Verts/ALE)

11:00:58:00 - 11:01:37:00

(NL) Mr President, ladies and gentlemen, there has been heavy lobbying around this report because there is much at stake. I understand this very well and I share this concern. This directive, which is probably well-intentioned, is a threat to scores of small- and medium-sized enterprises in Europe who are at risk of losing their creativity as a result of all these patents. These small- and medium-sized enterprises are the avant-garde of the business sector. We must nurture these small- and medium-sized enterprises because they deliver innovation. This innovation enables us to maintain our position in the world market. We are against this directive because it represents overregulation. The present protection offered by copyright is sufficient. We Greens are often reproached as being busybodies. Well, here is the proof that we are not. As a matter of fact, there is talk in the USA of toning down patent laws, which are regarded as counterproductive. So why should we have to approve an outdated law in Europe?

Oreja Arburúa (PPE-DE)

11:01:37:00 - 11:04:02:00

(ES) Mr President, I would firstly like to congratulate the rapporteur, Mrs McCarthy, and the rapporteur from our group, Mr Wuermeling, for the effort they have made to reach a consensus and, in the case of Mr Wuermeling, to explain the complicated proposal within our group. The protection of computer-implemented inventions by means of patents is not a new problem and it must be made clear, as other Members have said in this House, that there is no intention to establish rules allowing computer programs to be patented, but to extend the classic doctrine of patents to computer-implemented inventions. We want to apply the existing arrangements for patents to computer-implemented inventions. It is clear that we must expressly exclude, as certain amendments do, the patentability of inventions solely because they use a computer.

With regard to the scope, I would like to focus on a very specific aspect: that of interoperability. Interoperability and communication between programmes should be excluded from the scope of this Directive. This aspect should be reviewed in a few years time.

The exclusive use which the law allows holders of patents obliges the holder to explain their invention so that it may be comprehensible to an average expert in the field. I believe that in this case as well we must stress this aspect and oblige the person applying for a patent to sufficiently explain the object of that patent, though perhaps not until the publication of the source code, as Mr Harbour has said. That would be excessive. As I have said, it is especially important in this field to oblige applicants to describe their invention.

Finally, many people have criticised this proposal and have said that it may harm small- and medium-sized businesses. However, what we are doing is applying traditional patent law to small- and medium-sized businesses, in the knowledge that patents have increased growth and have made it possible for all types of companies - including small ones – to carry out research and invest in new developments.

We are competing today in a globalised market in which the United States and Japan develop many patents and inventions. We cannot be left behind and we must regulate here in Europe as well the possibility of registering computer-implemented inventions as patents.

Ghilardotti (PSE)

11:04:02:00 - 11:06:33:00

(IT) Mr President, I would also like to thank the rapporteur for her work because I feel that - as this morning’s debate has confirmed - this is a very complex, sensitive issue.

As has already been said, software plays an important role in countless industries; it is a basic form of creation and expression. Software is, in addition, a field of specialised engineering and a basic human activity, with more than ten million professional developers throughout the world and tens of millions of people creating software.

Independent software developers and small businesses play a fundamental role in innovation in this area, above all in Europe. Europe is at the forefront of the culture of information technology: 71% of open source software developers work in Europe and only 13% in the US. Patents should not, therefore, permit the monopolisation of tools for the expression, creation, dissemination and exchange of information and knowledge, must not hold back the development of research and knowledge.

The stakes are considerable because this is a matter of guaranteeing that research and innovation continue to be free and – according to the spirit of Lisbon - to stimulate economic growth based on knowledge, to bring about the stimulation of software-based innovation and inventions at all levels and to avoid production and trade monopolies for products that use the software. Thus, some fundamental points of the Commission proposal need to be modified and improved on, so that the regulation is a step towards clear, severe limitation of the conditions for patentability.

A great deal has been said about technical contribution, industrial application, the meaning of computerimplemented invention; the conditions for the industrial use of an invention based on software filed for a patent must be extended to the product as well as the method. This is why Commissioner Bolkestein said that he is concerned that the amendments tabled in this House will be adopted, For my part, I have to say that I am concerned that, if they are not adopted, we will not be able to support the proposal on the table.

Figueiredo (GUE/NGL)

11:06:33:00 - 11:07:50:00

(PT) Mr President, our debate today is of the utmost importance not only for software developers in the European Union, but also for all those with an interest in knowledge. This is because, by proposing the patentability of computer-implemented inventions, the Commission is preparing the ground for the patentability of human knowledge. It goes without saying that human knowledge cannot become the birthright of large multinationals, which are almost synonymous with Microsoft in this case.

We all know that this proposal for a directive responds neither to the economic, scientific and cultural challenges facing the software sector, nor to the imperative to promote innovation, technological development or the interests of SMEs. We know how important it is to maintain a supply of free software, and how important it is to give the public sector tools for developing a content and service industry, in order to protect the common interest. For that reason, and to give voice to the strong opposition of scientists and software publishers, this proposal for a directive must be rejected. I hope that this plenary will send a clear message by approving the proposal for a rejection, which I endorse and which was tabled by my group.

Karas (PPE-DE)

11:07:50:00 - 11:10:21:00

(DE) Mr President, Commissioner, ladies and gentlemen, a directive which regulates the uniform application of the law by patent offices and patent tribunals is to be welcomed unreservedly in the interests of a well-functioning internal market and for the sake of avoiding distortions of competition. However, we must not forget that the development of new software must not be impeded, the position of SMEs must not be made more difficult, that we must create legal certainty, and that we want to prevent new distortions of competition.

I took every letter and every discussion very seriously. Some fears are rooted in misinterpretations. Some points of criticism are based on American realities and not on the content of the directive. However, I do endorse some of the arguments. The European Patent Office is violating the laws between EPAT, the Member States and the European Patent Convention.

The definition of ‘technical contribution’ is too vague. A clear distinction between technical and intellectual inventions is required. I therefore support some of the amendments and compromises proposed by my friend Mr Wuermeling and the rapporteur. I would like to thank my fellow Member Mrs Echerer for the large quantity of material that she supplied. I support some of the amendments proposed by my colleague Mrs Kauppi: Amendments Nos 107 and 108, which clearly define the term ‘field of technology’, Amendments Nos 112, 114 and 117, which make it clear that computer programs do not, in themselves, constitute patentable inventions, Amendment No 116 on the limits of patentability, and Mr Wuermeling’s compromises in which reference is made to the current EPAT legal framework and there is a clarification to the effect that trivial inventions and business methods are not patentable. I hope that we can all live with these amendments.

(Applause)

Sousa Pinto (PSE)

11:10:21:00 - 11:11:42:00

(PT) Mr President, in the absence of a clear legal framework, the rise of the abusive and opportunistic exploitation of legal provisions designed to protect patents, with the aim of profiting from advances made in information technology to do business, constitutes an unacceptable way of privatising human knowledge.

Privatising knowledge in a field which cannot, even in the broadest terms, be confused with that of technical and industrial inventions simply means creating new business opportunities. Progress in information technology results, by definition, in advances which are as a rule unpatented, or which cannot be patented by anyone in particular, being added to the sum of knowledge. The right to make a profit of those who are most assiduous in appropriating common property should not be protected by law, much less should their interests take precedence over the interests of the general public, the interests of the economic and scientific communities, and the interests of civilisation, in knowledge not being commercialised.

The application of true software inventions, resulting from investments, to the process of production should, of course, be protected. There is a world of difference, however, between protecting these legitimate interests and using that protection as a pretext to patent software indiscriminately. The proposal on the table today, with the compromise amendments suggested by the Group of the Party of European Socialists, manages to reconcile these different concerns in an acceptable way.

Niebler (PPE-DE)

11:11:42:00 - 11:14:11:00

(DE) Mr President, Commissioner, ladies and gentlemen, I would also like to start by expressing my warm thanks to the rapporteur, Mrs McCarthy, and our shadow rapporteur.

Ladies and gentlemen, do we really need this directive? Like many other Members, I too have received many worried letters expressing serious concerns about the Commission proposal. I have taken these concerns very seriously, because no one wants to stand in the way of innovation in Europe or impose additional burdens, especially on the small and medium-sized IT companies. After weighing up all the pros and cons of this directive, however, I am convinced that we will make the right decision tomorrow if we adopt this directive with the amendments proposed by the Committee on Legal Affairs and the Internal Market and various other clarifications.

We need this directive. It is simply designed to harmonise existing practice governing the granting of patents in Europe, and in this context, more stringent criteria are to be adopted, particularly for the granting of patents.

I have a number of reasons for supporting the directive. Firstly, the directive will ensure that we do not end up with US conditions in the granting of patents. Simple business methods and pure software will not be patentable in Europe. The directive states this quite explicitly, and it is also prevented by the fact that patent protection for computer-implemented inventions requires a technical contribution. I am grateful to Commissioner Bolkestein for stating this quite explicitly again today, and would like to reiterate that we have no doubt about this. This House should also not act as if someone might interpret the report in a way which conflicts with the clear statement by the Commission and the proposed amendments, which are also very clear on this point.

Secondly, the directive is not meant to protect trivial software. Patents on trivial software, such as progress bars, are a cause for concern and are not desirable. The directive also makes it clear that we do not want to grant patent protection to trivial software.

I would ask you, in tomorrow’s vote, to support the proposed amendments in which we clarify a number of points, but also to give your endorsement to Mrs McCarthy’s report as a whole.

Zrihen (PSE)

11:14:11:00 11:15:39:00

(FR) Mr President, Commissioner, ladies and gentlemen. At a time when we want to encourage innovation, growth and competitiveness within the European Union, in the form of a simple legal harmonisation and clarification of the varying practices and interpretations in this area, this directive represents a real step backwards, a real change of approach in relation to the European Patent Convention and to the directive on software copyright, because it seeks to extend to the limit the possibilities of patenting this software. We should consequently reject this directive, because it contains too many vagaries.

First of all, computers have become a crucial tool in transmitting ideas, thoughts and knowledge. Excessive private appropriation of this tool is, therefore, dangerous. Copyright is more suitable.

Secondly, from the economic point of view, innovation in the field of software is often accomplished by SMEs or by independent researchers, for whom patenting is not a suitable instrument because it is too expensive, too involved and will create a legal nightmare. It has not been proven that protection will increase innovation, growth and competitiveness. Lastly, in the context of the economic rivalry that pits us against the United States, adopting this directive would allow some large corporations, which act as monopolies, to maintain their dominant position in the market.

We shall, therefore, continue to wait for a directive drafted after a more detailed study has been undertaken into the economic effects on innovation, competition and intellectual property policy in this sector.

Thyssen (PPE-DE)

11:15:39:00 - 11:17:59:00

(NL) Mr President, Commissioner, if it were up to the EVP (Evangelical People’s party), there would be no software patents at all, and if it were up to you, Commissioner, there would not be any either. This is how I understood it, after I received the proposal and after I read the existing legislation – and the innumerable letters we have all been receiving – more than once. Many people in our group support the starting points and the objectives in the Commission’s proposal. Commissioner, I hope that you will be able to support a number of amendments which have been submitted on behalf of our group and which – building on Mrs McCarthy’s report and the report by the Committee on Legal Affairs and the Internal Market – define matters more clearly and put more flesh on the bones of the monitoring task.

I do not believe the assertions that are persistently doing the rounds that this proposal would be a bad thing for small- and medium-sized enterprises. More legal certainty and uniform application of the legal rules in the internal market are things small- and medium-sized enterprises have a particular need of. In my view, smalland medium-sized enterprises do not have a specific problem with this directive, but they do have a general problem with the patent system as such. Much of the criticism in the letters boils down to that. This is true both when they enjoy the protection of a patent themselves and when they have to deal with the patent rights of others.

Hence my question, Commissioner, as to whether you and your administration could not think creatively about how we can achieve a European approach that will enable small- and medium-sized enterprises to improve their position in patent land. I have not submitted an amendment on this as I think that this text is not an appropriate place for this from a legal point of view. I do, however, think that it is important enough to make this suggestion now from a political point of view, and I would therefore appreciate it very much if you could give me an answer.

Paasilinna (PSE)

11:17:59:00 - 11:19:32:00

(FI) Mr President, I would like to thank the rapporteur. If we try to complicate the work of the open-source community, software houses, those toiling away on their own and small associations by extending patentability, we shall be destroying the whole basis of the information society. Innovations that benefit all of us, such as Linux, show just how big an issue this is: it is about narrowing the digital divide.

Of course, copyright already protects software codes. Software patents have their downside in that designers can by no means always know they are infringing patents and may indeed become liable for damages on a huge scale. The limits of patentability must be defined in such a way that programs, algorithms and business methods are, as such, precluded from patentability, and so that patents may not be used to hinder competition. We support small-scale entrepreneurship in this sector.

De Rossa (PSE)

11:19:32:00 - 11:21:25:00

Mr President, this is one of those areas where those of us who are neither legally nor technically expert address debates of this kind with our fingers crossed behind our backs, hoping that we are getting it right. I say that particularly in relation to this debate because so many hundreds of thousands of livelihoods depend on this Parliament and the Commission getting this issue right.

There are very few absolutes in this debate. Perhaps the Commission is right to some extent, and perhaps Parliament is also right to some extent. What is absolutely certain is that doing nothing is not an option; we cannot allow the current situation to continue as it is. Therefore, I hope that the Commissioner can find a way to accept many of the excellent amendments that Mrs McCarthy has brought forward. The rapporteur has done tremendous work in teasing out the issues and presenting, certainly within my group, a very clear position. She has made every effort to find a consensus position.

It is important that we ensure that the open-source area is encouraged and that the whole IT industry is maintained in a vibrant and innovative way. However, it is not right that we should allow the current legal uncertainty to continue.

Bolkestein (Commission)

11:21:25:00 - 11:30:28:00

Mr President, since there are many amendments, I do not propose to go through them all one by one, indicating the Commission's response. With your permission I should like to provide you with a list of the amendments by number, showing which of them the Commission can accept, which we cannot accept and which we could accept with suitable rewording1. On this understanding I should like to confine myself to some remarks of a general nature and hope to end with some more specific remarks to address questions raised by Members of Parliament.

Turning first to the McCarthy Report itself, I have already indicated that we are favourably disposed to most of the amendments that have been made in it. However, I should like to speak about two specific amendments that raise important issues.

The first is Amendment No 20 - the insertion of a new Article 6a on interoperability. At first sight this looks reasonable. On closer examination, however, it is plain, at least to the Commission, that the exception as proposed might empty some patents of their value. In fact it could potentially render them totally worthless. I believe this would be disproportionate and in addition may be against our international obligations under the TRIPs Agreement. Nevertheless we could look favourably on a provision that dealt with interoperability, provided that these important issues are dealt with. The wording used at the end of Amendment No 76 might form the basis of a compromise because it evokes the TRIPs Agreement.

The second point worth special mention is Amendment No 18 - the addition of a new paragraph to Article 5, dealing with computer program claims. That is something that the Commission did not put into its original proposal. This was not an oversight but something that we considered long and hard. We were concerned that allowing computer product claims was a step on a slippery slope to allowing computer programs on their own to be patentable, something that is clearly contrary to the European Patent Convention and to the views of the vast majority of the Members who spoke this morning. After reflection, however - and let me not disguise that a lot of this reflection was prompted by the work of this Parliament - we consider that such a clause might work within the Commission's overall objectives, if – and only if – we can word the Article in a very careful and cautious way.

Unfortunately, I cannot be as positive about most of the amendments which have been tabled to the McCarthy Report and which have to be considered here today. The problem with many such measures is that even if they were considered to be worth looking at, they all have one thing in common: they introduce a special regime for computer-related inventions. In patent law and practice it is a fundamental principle that inventions ought to be assessed in a neutral manner with regard to the type of technology on which they rely. The patent examiner will of course examine each individual invention for its inventive element, but he or she has no preconceptions that an invention that uses a certain type of technology is per se innovative or not.

This principle is in fact enshrined in international law, in particular the TRIPs agreement, where it is stated that patents shall be available in all fields of technology and patent rights enjoyable without discrimination on that basis.

There are some amendments which pose less of a problem for the Commission and we might therefore accept them. I am thinking especially of certain of the amendments directed at the report which the Commission must prepare on the operation of this directive, although I should emphasise that the Commission is not prepared to accept that, in this respect, 'Anything Goes'.

Anything which imposes unreasonable demands, given the limited resources at the Commission's disposal, could not meet with our approval. The need to remain within the scope of the directive should also be borne in mind. Some of the amendments proposed are too broad in their effects.

That said, I shall make a few brief remarks. Firstly to Mr Rocard, who said that the proposal does not guarantee that there will be no software patenting as such. The proposal lays down a specific hurdle that must be cleared before any invention can be patented. The invention must make a non-obvious technical contribution: this guarantees that non-technical software will never be patented but genuine technical inventions will get the protection they deserve. I also say this to Mr MacCormick who asked me to ensure the directive is watertight against leakage. This requirement of the technical contribution does so. I hope this will satisfy Mr De Clercq.

My second specific remark is addressed to Mrs Echerer, who said that if a small part of a problem is patentable then the whole problem is patentable. Patents are about solutions to technical problems and a patent has to cover the whole, not just a small part, of the solution to a problem. It is only infringed if the whole solution is used. It does not, therefore, monopolise every separate component part which contributes to the solution.

On the matter of SMEs, which many Members mentioned: in so far as SMEs are users of patents, I wish to stress that nothing becomes patentable that is not patentable now. As SMEs may be inventors of software, they also need to be protected and would get the protection they deserve under the directive. I say this to Mr Oreja and Mrs Thyssen in particular.

Let me echo the words of Mr Wuermeling who said: 'whoever opposes this directive must know that the present practice will be continued.' Therefore, if you do not want the present practice to continue, please vote in favour of this directive.

Lastly, the Commission would once again like to thank Mrs McCarthy for her report . Although it is not identical to the Commission's original proposal, –it could, subject to the comments I have made, achieve the balance that we require. I thank all Members for their attention and you, in particular, Mr President.

(Applause)

President

Thank you very much, Commissioner.

Our rapporteur wishes to add a few words.

McCarthy (PSE) (Rapporteur)

11:30:28:00 - 11:31:51:00

Mr President, I did not want to make this point during my speech, but it is necessary that it should be made. In the ten years that I have been an MEP I have never encountered such a personal, aggressive and abusive campaign as I have with this particular directive. I have been bullied and harassed by lobbyists. My staff have been bullied to the extent that one of them had to take days off with a stressrelated illness.

I am now asking you, Mr President, to ensure that you conduct the vote tomorrow in an orderly way, to ensure that Parliament and its Members are permitted to vote as they are empowered to do by their democratic mandate to draft and make legislation.

President

The debate is closed. The vote will take place tomorrow at 12 noon.

Kauppi (PPE-DE) (in writing, art 120)

(FI) The proposal for a directive on the patentability of computer-implemented inventions must have aroused more passion than any other matter debated in Parliament in recent times. From the outset my opinion of the directive has been critical. I do not, however, object to it totally, as I think it is good that the present confused situation regarding conditions for granting software patents is to be clarified. At present, with the regulations being so unclear, the decisions taken by national patent offices and the European Patent Office may well have been very different, and therefore common European rules could be needed. There have to be quite a number of amendments made to the report, however, before it can be adopted. The amendments I have proposed would make the directive less harmful to independent software developers and small- and medium-sized companies.

My main arguments are as follows:

- In its present form the directive could significantly harm independent software developers and European small-and medium-sized software houses, which may find it impossible to survive in the ‘patents jungle’ of the great software giants. Patent processing times are very long and application is expensive. That is why they could slow down and even obstruct the development of the European software sector, dependent as it is on innovation and speedy reaction.

- Software interoperability and communications should, furthermore, be possible without huge licence fees. I am in favour of open interfaces. Algorithms, business prototypes and computer programs should not be patentable as such.

- One of the main purposes of granting patents has always been to make society aware of the existence of inventions. Patents on computer-implemented inventions are virtually useless as data sources if the source code is not published. In the United States of America the source code is published in the patent application in the case of most software patents, which is established business practice in the industry. This should also be possible in Europe. I hope that tomorrow’s vote will have a favourable outcome and that as many of my fellow Members as possible will show their support for a creative and innovative European software industry.