REPORT on the Green Paper on the Community patent and the patent system in Europe: Promoting innovation through patents (COM(97)0314 - C4-0342/97)

28 October 1998

Committee on Legal Affairs and Citizens' Rights
Rapporteur: Mr Julio Añoveros Trías de Bes

By letter of 24 June 1997 the Commission forwarded to Parliament the Green Paper on the Community patent and the patent system in Europe: Promoting innovation through patents.

At the sitting of 14 July 1997 the President of Parliament announced that he had referred the Green Paper to the Committee on Legal Affairs and Citizens' Rights as the committee responsible and to the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Research, Technological Development and Energy for their opinions.

The Committee on Legal Affairs and Citizens' Rights appointed Mr Julio Añoveros Trías de Bes rapporteur at its meeting of 2 September 1997.

It considered the Commission Green Paper and the draft report at its meetings of 22 January, 25 February, 23 September and 28 October 1998.

At the last meeting it adopted the motion for a resolution unanimously.

The following were present for the vote: De Clercq, chairman; Rothley and Malangré, vice-chairmen; Añoveros Trias de Bes, rapporteur; Barzanti, Berger, Carlo Casini, Cassidy, Ewing, Falconer (for Oddy), Ferri, Habsburg-Lothringen (for Lehne), Kuckelkorn (for Gebhardt, pursuant to Rule 138(2)), Medina Ortega, Morris (for Cot, pursuant to Rule 138(2)), Mosiek-Urbahn, Newman, Sierra González, Sisó Cruellas (for Palacio Vallelersundi, pursuant to Rule 138(2)), Thors, Ullmann, Verde i Aldea and Wieland.

The opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Research, Technological Development and Energy are attached.

The report was tabled on 28 October 1998.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant partsession.

A MOTION FOR A RESOLUTION

Resolution on the Commission Green Paper on the Community patent and the patent system in Europe: Promoting innovation through patents (COM(97)0314 - C4-0342/97)

The European Parliament,

- having regard to the Green Paper submitted by the Commission (COM(97)0314 - C4-0342/97),

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Research, Technological Development and Energy (A4-0384/98),

A. whereas a consistent, effective Community law on patents is an essential element contributing to the competitiveness of EU companies,

B. whereas a Community scheme for the protection of industrial property must be something to which SMEs have ready access,

C. whereas an insurance scheme, by which legal costs in connection with legal proceedings will be covered, will give enterprises (including in particular SMEs) a fair possibility of defending their patent rights and thus strengthen their confidence in the patent system,

D. whereas the 1975 Luxembourg Convention and the 1989 Agreement relating to Community patents (which has not come into effect) do not provide unitary protection of patents within the European Union,

E. whereas, on the other hand, the current combination of the European Patent Convention and national patent systems presents a well-functioning and flexible patents system in the European Economic Area,

F. whereas patent law in the European Union must be harmonised in order to consolidate the internal market,

G. whereas, in this connection, the harmonisation of certain specific provisions contained in national law is not sufficient, and whereas a Community regulation should therefore be drawn up,

H. whereas urgent consideration should be given to the Community patent system and the effective implementation thereof within the European Union before enlargement commences,

I. whereas any proposal for the future Community patent system should take into account a comparative analysis of the patent systems which already exist in the USA and Japan, whereas these systems are in competition with one another, and whereas the comparative aspects of the analysis should include both a study of the costs of applying for a patent and the potential industrial expansion of the European Union,

J. whereas the Member States must not abandon their national languages, since a patent is a means of providing information concerning the state of technology and legal certainty,

1. Considers that the Community patent must form the subject of a Community regulation which has Article 235 of the EC Treaty as its legal basis;

2. Considers that the European Patent Office should be the technical operator of the Community patent, in cooperation with national authorities;

3. Considers that, on a contractual basis between the EPO and national authorities, those of the latter which are capable of performing international search and examination may be given the task of performing parts of the EPO's work in connection with patent applications;

4. Takes the view that the following principles should apply as regards language use:

A patent may be applied for in any official language of the EU Member States;

The grant procedure is conducted in that language (the European Patent Office may of course use any language it wishes as its internal working language);

The patent is granted in that language (every market operator already needs to comply with its competitors' national patents, which are in the national languages of the relevant countries. The Community patent, too, may therefore be granted in any language, as this will not impose additional burdens on market operators);

The legal effects of patent infringement provisions (injunction and damages) may be enforced vis-à-vis another market operator only as from the date on which an official translation of the patent is served upon the latter;

In the case of patent revocation or infringement actions, the official language of the court having jurisdiction prevails in any event;

5. Considers that national courts should have jurisdiction in patent infringement or revocation actions, that the substance of such cases should be examined by two national courts and that the European Court of Justice should be the court which hears appeals on points of law;

6. Considers that the Community patent system should coexist with national patent systems. The Community patent should also be converted into a European patent during the stage preceding the conclusion thereof. A system must likewise be devised which will ensure that European patents are converted into Community patents;

7. Considers that a reformed patent system which will overcome the problems of the present systems and help to stimulate innovation must be simple, quick, legally secure, accessible and low-cost, without involving excessive expense;

8. Considers that, with regard to national and European patents, the national patent offices would continue to play the same role and to exercise the same powers as at present. Those offices also have an essential role to play in the dissemination and promotion of the Community patent system, with particular reference to access by SMEs to that system;

9. Calls for the fees paid by users to be made over to both the European Patent Office and the national patent offices and for the national offices to receive a percentage of the Community patent maintenance fees;

10. Notes that the mutual recognition of patent attorneys by the relevant institutions is a sine qua non for the simplification of procedures; considers also that other professional groups, such as business consultants, should be involved in the network of services associated with patenting, for instance to analyse research requirements and the definition of problems, patents research into the state of technology, etc.;

11. Calls on the Commission to establish a working group, with the task of preparing one or more models of legal expenses insurance for the field of patents in the EU; takes the view that the working party should for instance study the financing of the scheme, insurance cover, level of premiums, an authority of control, etc.;

12. Instructs its President to forward this resolution to the Commission, the Council and the national parliaments.

B EXPLANATORY STATEMENT

1. Introduction

The Green Paper on the Community patent constitutes a further step forward within the industrial property internationalisation process which has been proceeding both in Europe and in the world as a whole. This process began with the International Union's Paris Convention for the Protection of Industrial Property. The intention is to facilitate the opening of procedures designed to protect industrial property rights so that protection extends to a wide number of countries.

In Europe, this strategy resulted in the 1973 Munich Convention on the European Patent and the 1975 Luxembourg Convention on the Community Patent, the latter being supplemented by the 1989 Agreement relating to Community patents. The second and third of these three instruments have not yet come into effect.

1.2. The European patent system

The 1973 Munich Convention created the European patent system which lies outside the Community sphere since it is intergovernmental in nature. It represents a significant step forward in that it reduces the process of obtaining patent-based protection in more than one country to a single procedure, with the running of the system being entrusted to the European Patent Office.

The system has the following characteristics:

Applicants are free to select the countries in which they wish to secure the above protection, applications are centralised internationally, decentralised arrangements apply to the submission of full translations and language use is based on a policy of partial balance since only three official languages are recognised, from amongst which the language of procedure for the processing of the application documents must be selected. However, effects can be obtained at national level only if a translation of the full text of the patent granted is submitted in the local language.

1.3. The Community patent system

This system has not yet come into force. The purpose of the Luxembourg Convention and the subsequent Agreement is to create a unitary, autonomous law. Those who advocate this concept consider that it will enable significant advantages to be achieved, such as improvements to the running of the system and an end to the situation whereby separate legal actions for infringement of the patent need to be initiated in each country in which it is in force. A further proposal is that all such actions could be brought before the courts of the Member State in which the defendant is domiciled, whilst greater legal certainty could be secured through the establishment of a single central court competent to rule on such matters.

2. Problems arising in connection with the Community patent system

2.1. Translation costs

Patents serve a dual purpose: they provide information concerning the state of technology and they act as a technical and legal means of protecting inventions. The erga omnes effect, the legal certainty which it implies and the principle of linguistic equality lead us to consider the question of translation costs, though not just from a financial point of view; we also need to take into account the possible impact and influence which European inventions may have in other parts of the world.

We therefore believe that the requirement for the patent documents to be fully translated into all the languages should be maintained in order to protect the public interest since the information contained in such documents has an impact on society both within Europe and beyond.

2.2. Problems stemming from the judicial arrangements

The Commission believes that these problems arise as a result of the legal uncertainty stemming from the fact that a number of legal bodies are provided for in Article 20 of the Protocol on disputes.

On the basis of the principle that the legal system should be run efficiently, we proposed that, as in the system used in trademark law, the national courts should have jurisdiction in the first instance both for infringement actions and for counterclaims for revocation. The reason for this proposal is that basing the judicial structure in the individual Member States would lead to greater flexibility, greater ease and lower costs. This is a decisive factor for SMEs since the cost of an international dispute at first instance could prevent them from fighting their case. The judicial code used should be the law of the country in which the defendant is domiciled. The body of appeal would be the European Communities' Court of First Instance.

2.3 Fees

The fees paid by the users of the system should be made over to the European Patent Office, provided that the latter recognises that it must pay contributions to the national offices. The national offices would retain their existing powers and would also be given the task of disseminating and promoting the patent system. They should therefore receive a percentage of the Community patent maintenance fees.

2.4 Appropriateness of the links to be established between the European patent system and the Community patent system

The Green Paper maintains that it should be possible for an application for a European patent to be converted into an application for a Community patent. This would involve a series of legal changes which would affect third parties, for which reason the change should be restricted solely to applications made during the procedure for the granting of the patent. It seems acceptable that an applicant for a Community patent should be able to covert his application (before the end of the procedure for granting the patent) into one for a European patent which, once issued, would generate a set of national patents corresponding to the countries designated.

The possibility of converting an application for a European patent into an application for a Community patent seems realistic if all the EU Member States are designated in the application.

3. Adoption of further harmonisation measures at Community level

3.1. Patentability of computer programs and software-related inventions

In general, copyright protection of computer programs is provided by means of Directive 91/250/EEC of 14 May 1991. However, we believe that the lack of active legislation in this area could hinder the free movement of goods within the internal market. We are in favour of restricting patentability to the plans, principles and methods relating to the performance of intellectual activities, to computer programmes and to the form in which information is presented.

Lastly, we should like to propose a reform of Article 52(2) of the European Patent Convention which excludes the patentability of inventions relating to computer programs. In order to receive protection, inventions should constitute exclusively a solution to a new technical problem.

3.2 Possibility of introducing a period of grace

The possibility of introducing a standard period of grace for the purpose of regulating the exploitation of an invention which has been marketed before an application for a Community patent is filed (in order to preserve the 'novelty of the invention') is worthy of consideration. The conditions under which such a period is laid down must be strict and must refer solely to dissemination carried out for scientific purposes during a short period of time prior to the submission of an application for a patent. Logic would dictate that harmonisation of the period of grace should be subject to the existence of a legal basis within the Treaty. It should also be borne in mind that Parliament is currently discussing the Green Paper on the Community Patent and that any particular initiative must be brought into line and be consistent with whatever general concept for patents is proposed by Parliament.

3.3 Employees' inventions

We believe that this issue should be settled by the Member States themselves.

3.4 The right of bona fide prior use before a patent applied for is granted

Appropriate terms should be defined with a view to harmonising the limits within which a third party who has been able to use an invention in good faith (or who has made preparations for the commercial use thereof) may continue to exploit it once a Community patent has been granted.

3.5 Reform of formalities and use of patent agents

In view of the harmonisation work undertaken by the World Intellectual Property Organisation (WIPO), we believe that it may be more prudent to wait for that organisation to conclude agreements than to promote them at Community level. Whether successes are achieved in this area at Community level may be regarded as unilateral actions within the above body.

Any harmonisation relating to patent agents should focus on securing an appropriate and balanced distribution of such agents within the territory of the Community, in parallel with the effective introduction of the freedom to provide services.

4. Additional measures to make the patent system more attractive

. There would be no objection to the idea of securing greater harmonisation in the treatment of utility models - indeed, Parliament is shortly to consider a proposal for a directive on that topic.

. The Green Paper proposes setting up a system of legal costs insurance intended to protect businesses from the costs of any legal action based on the Community patent. However, such an arrangement would create doubts regarding the operational difficulties of such a proposal, in view of the differences between the various national procedural rules.

4.1 Fees and SMEs

The Green Paper proposes a reduction in fees for SMEs, individual inventors and universities. We are very much in favour of this proposal, although we would advocate a reduction in fees to between 40 and 50% of their normal level. In the event of abuse, the reduction would be forfeited.

28 October 1998

OPINION

(Rule 147)

for the Committee on Legal Affairs and Citizens' Rights

on the proposal for a Council Regulation on the Commission communication 'Promoting innovation through patents - Green Paper on the Community patent and the patent system in Europe' (COM(97)0314 - C4-0342/97) (report by Mr Añoveros Trías de Bes)

Committee on Economic and Monetary Affairs and Industrial Policy

Draftsman: Mr Carles-Alfred Gasòliba i Böhm

PROCEDURE

At its meeting of 29 October 1997 the Committee on Economic and Monetary Affairs and Industrial Policy appointed Mr Carles-Alfred Gasòliba i Böhm draftsman.

It considered the draft opinion at its meeting of 28 October 1998.

At this meeting it adopted the following conclusions unanimously.

The following were present for the vote: von Wogau, chairman; Garosci and Secchi, vice-chairmen; Gasòliba i Böhm, draftsman; Areitio Toledo, Arroni, Barton (for Berès), Billingham, Bowe (for Caudron), Camisón Asensio (for de Brémond d'Ars), Cars (for Cox), Christodoulou, Donnelly, Ettl (for Harrison), Fayot, Friedrich, García Arias, García-Margallo, Glante, Glase (for Carlsson), Goedbloed (for Larive), Hendrick, Herman, Ilaskivi, Konrad, Kuhne (for Imbeni), Langen, Lienemann (for Paasilinna), Lulling, Mather, Thomas Mann (for Fourçans), Metten, Miller, Murphy, Peijs, Pérez Royo, Porto (for Hoppenstedt), Randzio-Plath, Rapkay, Read, Riis-Jørgensen, Rübig, Skinner (for Torres Marques), Tappin (for Wibe), Theonas (for Ribeiro), Thyssen and Watson.

BACKGROUND

Intellectual property is an essential factor in the promotion of innovation, and is basic to competitiveness in an advanced society such as that which exists in Europe. Unfortunately, Europe remains in the second rank as far as the protection of such innovations is concerned. In 1995, the Commission drew up a Green Paper on innovation[1], with the objective of consulting those interested via public intervention, and launched an action plan for innovation in Europe[2], in which it delineated an overall view of the patents system in Europe, with a view to determining whether it corresponded to user needs, examining whether new Community measures were required, and considering the content of any such new measures.

At present, two parallel systems exist in the EU for the protection of inventions within the internal market: the national arrangements, and the European patents system, created by two international treaties, namely the Munich Convention of 1973 and the Luxembourg Convention of 1975, together with the subsequent agreement on Community patents of 1989[3]. The aim of the latter agreement was to ensure the achievement of the objectives of the single market, especially equal conditions of competition and the free movement of goods. It does not, however, fall within the scope of Community law as such, nor does it include all the Member States.

Nonetheless, we believe it is necessary to undertake a new form of Community intervention in the field of patents, given that the different systems applied by the Member States present divergences, while at the same time costs are multiplying and both the geographical rea covered and legal security are diminishing. The European system involves a single procedure, but one which is lengthy and expensive.

The 1997 Green Paper

With the aim of evaluating opinions and encouraging innovation in the Community, the Commission published a Green Paper on the Community patent and the patent system in Europe ('Promoting innovation through patents')[4], in which it called on all those interested to take part in wide-ranging consultations on the matter.

This Green Paper offered an overall view, intended to be as broad as possible, on the protection of innovation via the patents system in the EC. It was the starting-point for an ambitious process of consultation involving the interested parties, the other EC institutions and the Member State authorities, on the subject of the protection of innovation in Europe under the patents system. The text evaluated the need to adopt specific Community measures or modify the existing national arrangements, and considered the possible form and content of such actions in the context of their concrete application.

The Green Paper examines a wide range of aspects, namely:

- the principles of patents;

- the language regime;

- the legal framework;

- fees;

- computer programmes;

- workplace-related inventions;- links to the European patent.

GUIDELINES

In the light of the above, the Committee on Economic and Monetary Affairs and Industrial Policy welcomes the initiative of simplification and the integration of this new project into the Community framework, and views it as a means to the improvement and speeding-up of the existing patents system and its integration into the Community system.

This would make it possible:

- to bypass the Member State level, thus reducing expenditure;

- to avoid multiplying actions against breaches of the law at Member State level;

- to achieve greater legal security.

We propose that a global solution should be sought with a view to improving the supply of information and eliminating the shortcomings of the existing system. This would entail reducing the financial burden and ensuring that the new Community initiative has the result of integrating the Community patents system even more firmly into the legal system based on the Treaty.

CONCLUSIONS

The Committee on Economic and Monetary Affairs and Industrial Policy calls on the Committee on Legal Affairs and Citizens' Rights, as the committee responsible, to include the following conclusions in its report:

1. Calls on the Commission to submit legislative proposals on the harmonisation of the legal regimes for the protection of inventions via the Community patent, the aim being that a single type of patent should apply, which would produce the same effects throughout the Community and could only be granted, transferred, annulled or extinguished for the whole of the Community;

2. Considers that, as far as legal systems are concerned, questions relating to the validity or nullity of the Community patent should be decided exclusively by the legal organs of the Member States, within the framework of Community law; specific competences would have to be overruled by the EPO or, in case of appeal, by the Court of First Instance;

3. Considers it necessary to introduce complementary measures to increase the attractiveness of the Community patents system, for instance a reduction in the existing retention fees; believes that it should be made possible for partial withdrawal from a Community patent to be effected by a limited number of Member States, by ceasing to pay the existing annual retention fees;

4. Believes that the possibility of choice of Member State existing under the European patents system is sufficient reason for retaining the existing arrangements; considers, however, that it is essential to introduce means of moving between the Community and European patent systems, e.g. by converting a request for a Community patent into a request for a European patent;

5. Stresses that, in the context of any fresh action in the field of patents, the question of prior utilisation or possession must be harmonised at Community level;

6. Believes that it should be possible to patent computer programmes, provided the programme in question meets the requirements as regards innovatory character and operationality of a technical invention, as is the case at international level with the Union's economic partners, namely the US and Japan.

28 April 1998

• [1] () Green Paper on innovation - COM(95)0688 - European Parliament resolution, A4-0165/96 (OJ C 181, 14.6.1996, pp. 12 and 35)
• [2] () First Action Plan for Innovation in Europe - Innovation for Growth and Employment - European Parliament resolution, A4-0269/97 (OJ C 304, 6.10.1997, pp. 75 and 80)
• [3] () See the Luxembourg agreement on Community patents (89/695/EEC) of 15 December 1989 (OJ L 401, 30.12.1989).
• [4] () COM(97)0314 - C4-0342/97

OPINION

(Rule 147)

for the Committee on Legal Affairs and Citizens' Rights

on promoting innovation through patents (COM(97)0314 - C4-0342/97) (report by Mr Añoveros Trias)

Committee on Research, Technological Development and Energy

Draftsman: Mrs Renate Heinisch

PROCEDURE

At its meeting of 4 September 1997 the Committee on Research, Technological Development and Energy appointed Mrs Renate Heinisch draftsman.

It considered the draft opinion at its meetings of 9 December 1997 and 27/28 April 1998.

At the last meeting it adopted the following conclusions with one abstention.

The following were present for the vote: Quisthoudt-Rowohl, acting chairman; Lange, vice-chairman; Heinisch, draftsman; Chichester, Estevan Bolea, de Gaulle, Graenitz (for Adam), Haug (for Desama), Holm (for Ahern), Linkohr, McNally, Matikainen-Kallström, Mombaur, Plooij-van Gorsel, Rothe and Tannert.

BACKGROUND

Innovation is vital to the development and success of modern, increasingly scientifically-based national economies as a guide to the conversion of new scientific and technological findings into commercially viable products or processes. Legal protection of innovation through patents is also essential or else private investment in research and technology would not be profitable. It is a wellknown fact that, compared with the USA and Japan, their main competitors, the Community and its Member States come off badly with regard both to investment in research and to patent applications and the grant of patents. In 1995 the 15 members of the EU spent 1.91% of GDP on R&D compared with 2.45% in the USA and 2.95% in Japan. As regards patent applications, Europe is particularly strong in the traditional branches of industry, whilst the USA and Japan are ahead in the fields of advanced technology which are crucial for the future. In addition, patent applications and protection in the USA are cheaper than in Europe, especially for SMEs, not least because of the translation costs.

Thus, in addition to the sponsoring of research, coherent, cost-efficient protection of European industrial property must constitute a basic element of the Community's technological policy. The Commission has already emphasised this in its Green Paper on Innovation and in its proposal for a directive on the legal protection of biotechnological inventions, which is at present going through the legislative procedure. It should also be pointed out in this connection that patent law does not make any pronouncements as to the social, economic or ethical value of an invention, nor does it give the proprietor authorisation to use it but merely grants him a right to preclude its use by third parties (the general legislation determines whether it is permissible for the proprietor of a patent to use an invention).

THE COMMISSION GREEN PAPER

In its Green Paper the Commission aims to provide a comprehensive review of current patent protection in the Community. In addition, it considers whether new Community measures and/or an extension of the present systems are necessary. The Commission wishes to find out from those involved the form and substance which such measures should take, if need be. Quite apart from this, the Commission should be congratulated on the cogent manner in which it has presented its arguments and the clear, succinct and straightforward language of the Green Paper. We hope that this example will set a precedent.

At the moment there is no patent system in Community law, merely national patents and the European (international) patent system. The aim of the European Patent Convention, to which all Member States have acceded, is the unitary grant of patents by means of a centralised procedure through the European Patent Office in Munich. It does not provide uniform protection but merely the protection of the national patent law. On the other hand, the unitary Community patent provided for in the 1975 Community Patent Convention (CPC) in conjunction with the 1989 Agreement relating to Community patents (the legal effects of which would be identical throughout the Community) has not yet come into force as a legal institution.

A considerable proportion of the Green Paper is devoted to discussing the advantages and disadvantages of a Community-wide patent protection (with a view to cost savings, simpler procedures for bringing actions and greater legal certainty). The following topics are dealt with: issues and problems relating to translation costs (which amount to more than 220 million ECU per annum for European industry alone), judicial arrangements, fees, international aspects (TRIPs agreement), the recognition of professional qualifications and issues relating to harmonisation, having regard to the patentability of computer programmes and employees' inventions. In keeping with the nature of a Green Paper, these are, however, preliminary observations which will have to be supplemented by the experience of the interested parties.

.OPINION AND CONCLUSIONS:

The Green Paper provides a good summary of the problems relating to European patent law and puts forward possible courses of action for reshaping it, if need be. It quite rightly does not discuss any specific proposals because it must first await the opinions of interested parties (industry, patent lawyers, etc.). As the Commission has asked detailed questions, it is likely that the replies from those involved in the field of patent law, and thus all the relevant factors, will be taken into consideration in a later document or proposal. It would therefore be premature to make specific recommendations at this time.

From the viewpoint of the Committee on Research, Technological Development and Energy the following main conclusions should be drawn:

1. Patents are an essential instrument for the promotion of investments in research and technology; coherent, efficient European patent law is therefore an important factor for to the competitiveness of undertakings in the European Union.

2. The level of the fees for patent applications and grants of patents is an important factor in the utilisation of the patent system, especially for research establishments and SMEs; there are no decisive arguments against considerably reducing the fees for SMEs following the American example, and, in addition granting reduced rates to non-commercial research establishments and universities.

3. The need for translations should not be an insuperable obstacle. The EPO has already developed what is known as a 'package solution' to reduce translation costs. This provides that only an enhanced abstract of the application and, at the time the patent is granted, only the patent claims, are to be translated. The full patent specification is to be translated only if there is a dispute over the rights created by the patent. The average translation costs would thus be reduced to approximately 4000 DM per patent (previously approximately 22 500 DM). This is an extremely reasonable and objective solution to the problem of translation costs.

4. In reshaping European patent law the rules on biotechnological inventions should be integrated into the Community patent system so as to prevent any further fragmentation of European patent law. The aim is 'by means of improved basic conditions' to increase the appeal of Europe as a site of innovation and to increase its international competitiveness. The promotion of biotechnology is a key factor with regard to the creation of jobs, particularly in the SMEs.

5. Pursuant to Article 27 of the TRIPS Agreement, patents are to be available for any inventions in all fields of technology. This means that computer software technology cannot be excluded. On the other hand, Article 52(2) of the European Patent Convention and the corresponding national patent laws of the Member States exclude programs for computers as such from patent protection.

Although the EPC, like the United States and Japanese Patent Offices, provides a large measure of patent protection for software-related inventions, computer programmes should be deleted from the provisions of Article 52(2) of the European Patent Convention and thus become patentable inventions. To supplement this a Commission directive on the harmonisation of the respective national provisions would be necessary. This directive should propose a uniform approach to the definition of 'patentable software inventions'.

6. It is unfortunate that the Commission did not take the opportunity in this Green Paper to discuss the introduction into European patent law of the legal device of the period of grace. A period of grace as exists for example in the USA enables the inventor to apply for a patent within a prescribed period even after he has published it himself. It would make access to European patent protection considerably easier, especially for scientific inventors and SMEs, increase the chances of high-quality research findings being utilised and thus help increase Europe's competitiveness and innovative power. An obstacle would be removed which handicaps and discriminates against researchers in Europe by comparison with patentees in the USA.