Subject: [FYI] Software patents: EU Commission launches consultat
From: "Axel H Horns" <>
Date: Fri, 20 Oct 2000 19:47:19 +0200

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Software patents Commission launches consultations

 DN: IP/00/1187     Date: 2000-10-19

     TXT: FR EN DE
     PDF: FR EN DE
     Word Processed: FR EN DE


Brussels, 19 October 2000 

Software patents Commission launches consultations

The European Commission has launched consultations via the Internet on
the patentability of computer-implemented inventions. The absence of
EU-harmonised legislation may be a potential barrier to industrial
growth, competitiveness and the development of the Internal Market.
Comments from interested parties, the public at large and Member
States have been invited until 15 December 2000 on the basis of a
consultation paper prepared by the Commission's services. This paper
has been made available on the Commission's Europa Website and will
also be notified formally to Member States. Considerable debate has
taken place in Europe recently about the patentability of computer
software. Some consider that patents in this field tend to stimulate
innovation in this sector by providing adequate protection of the
substantial amounts of money and resources that can be required to
develop sophisticated and specific software. Others believe that
patents will on the contrary stifle fair competition and hinder
innovation. The aim of the consultation is to help the Commission to
identify the best approach to the issue so as to strike the right
balance between promoting innovation and ensuring adequate competition
in the market place. The consultation document is available at the
following URL:

Some sections of European industry have repeatedly asked for swift
action to remove the current ambiguity and legal uncertainty
surrounding the patentability of software-related inventions. Their
argument is that in the absence of such patentability, Europe risks
losing the global innovation race in this high-technology sector. In
fact, in the United States and Japan it is much easier to obtain
patents for such inventions. On the other hand, a substantial number
of small and medium-sized enterprises and those favouring the creation
and use availability of free open source software, the so- called
"open source community", have increasingly raised concerns about
software patents. The consultations just launched will give all
parties another chance to comment on the issue and allow the
Commission to take account of developments since its earlier
consultation on the basis of a 1997 Green Paper on patent issues (see
IP/97/558). This is all the more important given the rapid pace of
change of the economic environment in the Internet-based Information

In a Communication of February 1999 on patent protection (see 
IP/99/105), the Commission identified the need for legislative action
regarding patent protection for computer-implemented inventions. The
current legal situation is unsatisfactory because it is lacking
clarity and legal certainty. Computer programs "as such" are excluded
>from patentability.  

Yet, thousands of patents for technical inventions using a computer
program have been granted by national patent offices and by the
European Patent Office (EPO). Furthermore, while the national and EPO
provisions setting out the conditions for granting such patents are
similar, their application in practice varies considerably.  

This situation has adversely affected investment and innovation in the
software sector and has also had a negative impact on the functioning
of the Internal Market.  

Harmonisation of national patent laws on the issue is therefore 
necessary. This should provide greater transparency for European
companies, especially for SMEs. It should also improve the competitive
position of the European software industry in relation to its major
trading partners. The need to improve the competitive situation is all
the more urgent because of the increasing distribution and use of
computer programs on a world-wide scale via the Internet.  

In parallel with the preparation of a legislative initiative by the
European Community, amendments to the European Patent Convention are
currently under preparation. To this end, an intergovernmental
conference is due to be held in Munich in November 2000. It is
possible that this conference will decide to delete computer programs
>from the list in the Convention of items that cannot be patented. A
majority of contracting states to the Convention (i.e. all EU Member
States plus Cyprus, Liechtenstein, Monaco and Switzerland) seem
prepared to support such a move. However, a number of EU Member States
have expressed a preference for the Commission to come forward with an
initiative in this field.  

The Commission considers such an initiative to be essential to 
prevent national courts and patent offices from developing practices
which would allow for the granting of undesirable patents. It is only
by EC-wide legislation that we will be able to restrict the conditions
for the patentability of computer-implemented inventions to the right
level in Europe. A further issue is that it is not immediately evident
at what level harmonisation should take place. For example there are
substantial differences between the legal requirements in Europe and
in the United States. More specifically, in the US patents for
computer-implemented inventions are increasingly being granted for
business methods, in particular for business methods with applications
in electronic commerce.  

The wide consultation with all interested parties, including the
Member States, should provide guidance for the Commission in deciding
its policy on this important issue identifying this level. The
Commission will define its final position only after the end of this
consultation. In deciding its policy, the Commission will take into
account the likely impact of patents for computer-implemented
inventions in particular on:  

innovation and competition, both within Europe and internationally,  

European businesses, including small and medium-sized enterprises,  

electronic commerce, and  

the creation and dissemination of free/open source software.  

In the light of recent developments in the United States the 
Commission launched an independent study on the economic impact of the
patentability of computer programs. This study is also available on
the Europa Website (see above) and interested parties are invited to
comment on its findings as part of the consultation. The study appears
to favour a harmonisation and clarification of European patent laws on
the issue based on the status quo in Europe. It considers that any
move to strengthen patent protection in the software industry cannot
claim to rest on solid economic evidence.  

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