[ILUG] Re: S/W patent letter

[Marcus Furlong]

>   * They will need time to examine the situation, particularly
>     McCreevey's comments last night.

McCreevy, Member of the Commission.

Mr President, the Commission is grateful for this opportunity to make a
statement on the proposal on the patentability of computer-implemented
inventions. I have already had the opportunity to discuss the proposal with
the Committee on Legal Affairs on 2 February and with the Conference of
Presidents on 3 March. On both occasions I took very careful note of
Parliament’s views. I noted that Parliament considers, in general, that its
views were not given sufficient weight at first reading. From the debate in
the Legal Affairs Committee, I noted that there are differing views on the
substance of the proposal, in particular its content and purpose.

The Commission gave careful consideration to Parliament’s request of
24 February, submitted under Article 55 of Parliament’s Rules of Procedure.
But the Commission concluded that at that stage, regrettably, it could not
submit a new proposal as Parliament requested. That was not because the
Commission wished to persist stubbornly with the proposal, but because the
Council was on the point of adopting a common position. 
 
As I explained to the Conference of Presidents, the Council reached a
political agreement in May 2004 at first reading. The Council has been on
the verge of confirming the political agreement in the form of a common
position since December 2004. The Commission had supported the political
agreement of May 2004. The Commission could not, therefore, go back on its
word when the Council was in the process of confirming its common position. 

The Council has now made up its mind and adopted its common position. It did
so yesterday at the Competitiveness Council. Jeannot Krecké, Chair of the
Competitiveness Council, has already explained to the Legal Affairs
Committee the reasons behind the Council’s stance. It confirmed its common
position, primarily for institutional reasons. The Council wanted to avoid
the setting of a precedent, with Member States being seen to back away from
a deal they had signed up to in May 2004. The Council confirmed its
position to show that a deal is a deal and that it was not creating a
logjam in a key area for innovation. 

Yesterday, when the Council took its decision, Jeannot Krecké noted that
some Member States had concerns about the substance of the text and that
these would be addressed at second reading. 
 
The ball is now very clearly in the European Parliament’s court. It is for
you to decide how you want to play it. I do not have to remind you of
Parliament’s rights: we discussed this in the Conference of Presidents. You
can, of course, reject or substantially amend the proposal. If Parliament
decides to reject it, then the Commission will respect your wishes. I will
not propose a new directive. 

Should you decide to propose amendments, the Commission will give them due
consideration. No doubt improvements can be made. You will understand, of
course, that I cannot speak on behalf of the Council and I would urge
Parliament to engage constructively with the Council on this subject in the
future. I am ready to help in any way.

Before concluding, I would like to say a few words on the substance of the
proposal, since Parliament will now need to turn its attention to this. The
Commission proposed to clarify the legal rules on patentability for
software-related inventions. This does not include computer programs or
other software as such. It means inventions that make a technical
contribution and that are truly novel. Such inventions are present in a
number of everyday consumer goods such as cars, mobile telephones and
domestic appliances. The Commission’s intention in making its proposal was
to avoid the patenting of pure software and make a clear distinction
between the European Union and the United States. Nothing that is not
patentable now will be made patentable by the directive. 

The current rules in the European Patent Convention leave patent examiners
very wide decision-making powers. There can be different interpretations as
to whether an invention can be patented. This leads to uncertainty for
businesses. Small and medium-sized enterprises in particular are negatively
affected by the lack of clarity in the existing rules. 

I would like to remind Members that, in the absence of a directive, patents
will continue to be granted. If patent offices decide to grant patents for
pure software, then expensive procedures before the Courts will be the only
option for those who wish to object. 

Those of you who have been directly involved in working on this proposal
know as well as I do that this is a very complex area. Any modifications
will need to be carefully examined. The directive cannot be turned on its
head. We need to maintain a proper balance between stimulating innovation
and making sure competition is not stifled. 
 
I hope I have not spoken for too long. The situation is now clear. The ball
is in your court. I am sure you will exercise your rights and your
judgement wisely. Whatever you decide, I would like to reassure you that
the Commission is listening. I know there is a new wind blowing. That is
reflected in the positions expressed in the Council and Parliament and the
Commission will take account of this and respect it.