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http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+PRESS+DN-20030923-1+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=X&LSTDOC=N#SECTION1

Arlene McCARTHY (PES, North West)
Report on the proposal for a directive of the European Parliament and of the 
Council on the patentability of computer-implemented inventions
(COM(2002) 92 - C5-0082/2002 - 2002/0047(COD))
Doc.: A5-0238/2003
Procedure : Codecision (1st reading)
Debate : 23.09.2003
Vote : 24.09.2003 

Commissioner Frits BOLKESTEIN opened the debate by reminding the House that 
computers have become evermore ubiquitous in our everyday lives. He added 
that microchips are essential to every day gadgets, such as mobile phones and 
microwaves. He pointed out that patentability of computer implemented 
inventions was already covered to some extent by the European patent system. 
"The aim of this directive is neither to abolish nor to extend the 
patentability of pure computer programs", he said. "But it is to firstly 
clarify the scope of patentability of software. Secondly, the aim was to 
harmonise on the base of existing practises, he added. The Commissioner went 
on to stress that "nothing would become patentable which is not already 
covered by existing patent law". 

Commissioner Bolkestein also noted that opponents of the directive had mounted 
a vocal - and sometimes personal - campaign based on half-truths and 
misconceptions, raising delicate issues such as the competitiveness for 
smaller firms. He clarified that the legislation aimed to tighten up already 
existing rules.

He expressed his concern on a number of the House's amendments, which were 
"unacceptable to the Commission". For him, two consequences, unforeseen by 
some Members of Parliament, may arise and cause further inconveniences. 
Firstly, the Commissioner believed that in the complete absence of 
harmonisation at Community-level, European as well as national patent offices 
would continue to issue patents to software. As a result, this would not only 
maintain legal uncertainty but also push back from the general objective. 
Secondly, he reminded the House that, as a result of the European patent 
office, there was a supranational patent system that could already act 
independently of community legislation. He warned Members that if the 
directive was not adopted, there may well be renegotiations of the European 
Patent Convention, which would not require the contribution of this 
Parliament. "Either we use the community method or we take a back seat and 
watch Member States go through the negotiation of an Intergovernmental 
Treaty", he concluded.

Arlene McCARTHY (PES, North West), the rapporteur, began her remarks by making 
it clear that her report was not about introducing a new patent law, not 
about patenting software and not about extending the scope of patents. This 
despite much lobbying to the contrary.

Mrs McCarthy pointed out that computer implemented inventions play an 
important role in all our lives - from washing machines and microwaves to 
computers. She stated that she was against going down the US route of 
patenting software and cited the "one click" Amazon patent as an example of a 
bad patent law. Mrs McCarthy rejected the criticisms from small and medium 
sized enterprises, stating that she had received letters from SMEs calling 
for such legislation to be introduced. A company from the South West of 
England, specialising in voice recognition technology, had written to her 
welcoming her report. She stated that her report was well-balanced and it was 
in fact about limiting patents to certain implemented inventions. This would 
ensure interoperability, and she underlined that this was not just about big 
business. The introduction of affordable patents and the protection of 
open-source community formed important parts of her report.

Speaking on behalf of the Industry Committee, Elly PLOOIJ-VAN GORSEL (ELDR, 
NL) stated that in her nine years of working in the European Parliament, she 
had never been lobbied in such an aggressive way. For her, the aim was to 
harmonise but she argued that there was legal uncertainty to what is 
patentable to software. 

For the Culture Committee, Michel ROCARD (PES, F) stressed that the debate is 
complicated both in legal and computer terms. "What is at stake is tens of 
billions of euros", he reminded the House. He explained that copyright rules 
try to protect the inventors, whereas software is built on the creation and 
human knowledge of the past. He believes that the multiplications of patents 
were highly dangerous for SMEs and individual inventors. "We accept the 
Commission's proposal, but some may think, such as Members of my group, that 
it doesn't go far enough", he concluded. 

Joachim WUERMELING (D), for the EPP-ED group, broadly supported the 
rapporteur, and he alluded to the technical and legal difficulties 
surrounding the issue. He regretted the sometimes personal and irrational 
lobbying that had taken place. His groups' aim was to ensure all business, 
including SMEs, could benefit from the legislation. He was also particularly 
concerned that the directive would properly protect the open-source community 
including Linnux. His group, he stated, was against any patenting of actual 
software. 

For the PES group, Manuel MEDINA ORTEGA (PES, E) also underlined that the 
proposed legislation was not about patenting software, a common misconception 
of some in the IT industry. The US model of allowing patents for computer 
software, he stated, was not a model that the EU should follow. It was clear 
that the EU needed a directive as there was now a trend towards too many 
patents and too much protection which had had damaging consequences on 
research and development.

Toine MANDERS (NL), for the Liberals, underlined that it was difficult, but 
necessary, to make a distinction between copyright and patenting. He spoke in 
favour of a proposed amendment offering grace period. The reference to a 
grace period, he stated, overlaps with an on-going debate in general 
patenting law, as a similar concept exists in some legal systems (in 
particular the US), but not in the European Union legislation. Specifically, 
elements disclosed by the applicant for a patent over a period of six months 
before the date of the application, he outlined, should not be considered to 
be part of the state of the art when assessing that particular claim.

On behalf of the EUL/NGL group, Pernille FRAHM (DK) wondered why SME's were 
not demanding to pursue the directive, but rather doing the opposite. "It 
leaves some doubts, as our intention is to create more development for SME's 
in this area", she added. Arguing that this incentive could involve too many 
costs for the SME sector, she called on Members to listen more to what SME's 
were saying.

Raina Mercedes ECHERER (A), who spoke on behalf of the Greens/EFA group, 
stated that "in the market, if someone wants to use a patent to abuse a 
dominant position, they can do that". 

For Antonio MUSSA (I), who spoke on behalf of the UEN group, "computers are 
the backbone of development in all countries of the world and innovation is 
predicted through patentability". He stressed that the EU did not need more 
rules and pointed out that his group does not support the draft report.

Bent ANDERSEN (DK), for the EDD group, stated that he had worked as an 
architect for most of his life and he could see many comparisons between the 
IT and architectural industry. He understood the need for protection of 
copyright but did not see the need for introducing patents for actual 
computer software. 

Marco CAPPATO (I), a non-attached Member, stated that he was broadly in favour 
of the rapporteur's position. The small dividing line between patenting 
computer software and patenting computer implemented inventions could lead, 
he warned, to much confusion. It was about protecting genuine inventions 
rather than patenting software. Symphonies, mathematical equations and 
formulae could not be patented and computer software, he said, fell into the 
same category.

Neil MacCORMICK (Greens/EFA, Scotland) warned against possible "leakage" from 
genuine protection of computer implemented inventions to companies being able 
to patent computer software. He stated that the present system, where genuine 
inventions are patentable and software is protected by copyright worked well. 
The responsibility, he underlined, lay with the Commission to find a balance 
between over and under protection for inventions.

Malcolm HARBOUR (EPP-ED, West Midlands) stated that patents played an 
indispensable role in making the EU the most dynamic knowledge based economy 
in the world. Patents, he said, help to stimulate investment and encourage 
invention. Protecting genuine invention and creativity would help business to 
develop products that people want to buy.

Proinsias DE ROSSA (PES, Dublin) quipped that those Members without a legal or 
technical background may find this issue difficult to grasp. What is clear, 
he said, that "doing nothing was unacceptable." Legal certainty was essential 
for the IT industry, he stated.

Commissioner Bolkestein concluded the debate by thanking the Members for their 
remarks. He added that many reflections made by the European Commission had 
been prompted by the European Parliament. However, he remained concerned over 
a number of tabled amendments that introduce "a special regime for computer 
related inventions". The Commissioner argued that inventions should be 
assessed in a neutral manner, regardless of the technology used. He added 
that this principle was enshrined in international law. Furthermore, he 
observed that some amendments do not respect the scope of the directive and 
could prove to be too broad in their effects. 

Arlene McCarthy regrettably added that in all the years that she had been an 
MEP, she had not been treated in such an aggressive manner. She said she and 
her staff had been bullied and harassed.
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