Debates

Tuesday, 5 July 2005 - Strasbourg

6. Patentability of computer-implemented inventions

  President. The next item is the recommendation for second reading, on behalf of the Committee on Legal Affairs, on the Council common position for adopting a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions [11979/1/2004 – C6-0058/2005 – 2002/0047(COD)] (Rapporteur: Michel Rocard) (A6-0207/2005).

  Michel Rocard (PSE), rapporteur. – (FR) Mr President, ladies and gentlemen, we are in the final stages of a long and fine parliamentary battle. I have to remind you what is at stake, although five minutes is an absurdly short time for such a complex problem.

There are three issues. The principle of the free movement of ideas, respect for competition and the rejection of the monopoly effect of patents, and finally the protection of individual inventors and small and medium-sized companies against the overwhelming might of a few very large corporations.

Everyone here wishes to clarify the law and believes that a directive is needed. No one here wants all software to be patentable. So, there should be no problem, except for the fact that a recent development, scarcely more than 20 years old, has complicated matters.

In the earliest days of the IT industry and when the first computer software was developed, no one ever thought of patenting it. Silicon Valley, Mr President, operated on this basis and developed for 20 or 30 years without patents. Software was protected by copyright, which was quite sufficient. Then, from the US, where there is no law on these matters, the idea emerged of extending patentability into this area. The starting point is the idea that the immaterial is not technical and that everything that connects to the material world and that uses matter, energy or tools is patentable. To be patentable, something must be new, inventive and capable of industrial application and must make a technical contribution. Everything that is a carrier or handler or that presents information to a software program which then processes it or that extracts the results of the software program's calculations in order to transfer them to the real world via a moving component or a signal – all of this is patentable, while the software program itself is not.

Later on, software programs were embedded inseparably in an invention in which carriers, software and handlers were again linked and inseparable. Then, inventions appeared in which only the software was new, while the carriers and handlers were old. We have therefore seen a number of courts and certain national patent offices, as well as the European Patent Office, committing the error of considering everything as technical, with the result that there are now 200 000 patents of this type, or more, in the USA, and 30 000 granted by the European Patent Office, notwithstanding Article 52, paragraph 2 of its basic charter, which stipulates that software programs are not patentable.

The abuses are well known and must not be forgotten: patents have been issued for teaching methods, commercial methods and guides for surgeons. In all these cases, if the software programs had been free, the whole of Africa could immediately have benefited from them, for instance in the fields of teaching or medicine. However, they are patented in the US, with the result that they are extremely expensive and out of the reach of the modern world. We have all condemned these abuses, including those of the European Patent Office, but its error has meant that the dividing lines are not clear.

Mr President, ladies and gentlemen, you are being asked to go back to first principles and to the law. However, some of our most prestigious industrial companies have not understood what we are doing. They are afraid of losing their protection, which we can understand in the short term, because the removal of protection will disturb the equilibrium in some areas. What do the largest companies do today? They swap portfolios of patents among one another to avoid the drawbacks of patentability suffered by anyone unable to take part in this game – namely anyone not as large as they are. Legal costs in all these companies’ research and development budgets are increasing relentlessly, and now exceed 20% just about everywhere. Two thirds of patents in force in the European territories are American or Asian, not European. Finally, when Siemens, GEM PLUS or Alcatel sell their mobile telephony divisions, these divisions go off to Asia, taking their patents with them, thereby depriving Europe of any chance of developing in these areas.

We therefore feel, Mr President, that, in the long term, the defence of our European industry is better served by liberty and by freedom of access than by patents. Moreover, China is training 2.5 million IT professionals every year. How can we face up to this challenge? The best way is freedom. Our leading industrialists should have grasped this, instead of which they have tried to use ridicule. What is more, this debate has given rise to a number of insults. For instance, it is a ‘man of the Middle Ages’ addressing you now. This is an indication of just how weak their position is. Our industrialist friends should admit that, just because an error has occurred, there is no reason to adapt our principles and law to fit in with it.

Turning now to the final problem, the TRIPS Treaty, ADPIC in French, can be interpreted in two ways. Either all software programs are patentable, in which case there is no problem: they all fall within the TRIPS (ADPIC) Treaty and WTO panels, but that is not what we want. Or alternatively, no software program is patentable: they all fall under the international laws of copyright. They also depend on the WTO panels, but with other rules. In the second case, we are also complying with the TRIPS treaty, although we are aware that the only thing prohibited by that treaty is the grey area. If there is a difference of opinion as to why a particular piece of software is patentable, the dividing line has ceased to be effective and the situation where ‘everything is patentable’ is possible, or at least is permissible.

Ladies and gentlemen, you are being invited here to reconcile principles, the law, consistency and clarity and merely to ask our major industrialists to make an effort to adapt – an adaptation which everything suggests will be much less painful than they believe.

(Applause)

  Joaquín Almunia, Member of the Commission. Mr President, as Commissioner McCreevy is unable to be present today, I will represent the Commission in this debate. I wish to begin by thanking Michel Rocard, the rapporteur on this complex and technical file, for his hard work on this dossier. I would also like to thank the shadow rapporteurs, who have also made a major contribution to the work of Parliament on this issue.

This proposal is not only relevant to inventions implemented on a standard computer – a laptop for instance – it covers many everyday consumer goods and devices increasingly important in our daily life, such as cars, washing machines, mobile phones, cameras, DVD players, TV sets, vacuum cleaners or medical equipment like scanners.

The proposed directive neither aims to abolish the current practice of the European Patent Office nor to extend it to cover the patenting of pure computer programs, as many of the opponents of the proposals have claimed. Indeed, many have equally – and mistakenly – claimed that the directive is introducing the notion of patentability of software inventions in EU patent practice for the first time. The proposed text clearly excludes patents for pure software, as well as patents for business methods as such. Only technical innovations embodied in a computer program and meeting the patentability criteria of novelty, inventiveness and industrial applicability can be patented.

A legal framework ensuring patent protection in this area is of key importance in enabling European industries, including small and medium-sized enterprises, to be competitive in a high-tech environment. Patents can guarantee a return on R&D investments, attract venture capital and provide bargaining power. This has a spin-off effect which boosts innovation.

The Commission believes that the common position meets the requirement of introducing a predictable legal framework that promotes and rewards innovation.

Amendments seeking rejection of the common position have been tabled. I would like to point out that this would only increase legal uncertainty with respect to the inventions in question. Lack of harmonisation in this field would prejudice the competitiveness of the European undertakings and continue to be an obstacle to the smooth functioning of the internal market.

In this spirit, the Commission continues to support the line taken in the common position. We can accept amendments that introduce useful technical or contextual clarifications, subject to minor fine-tuning or interpretative statements where necessary, but the overall balance of the proposal must be maintained.

The current definition of technical contribution in the directive is taken from existing case-law so, while it might be possible to word it more elegantly, we cannot turn it around. Instead, it seems more useful to focus on the scope of patentable subject matter in Article 4, bringing the exclusions out more clearly. Changing them in contradiction with the European Patent Convention would, however, simply cause confusion. In addition, interoperability concerns can be addressed by allowing access where possible to necessary technologies while protecting the legitimate rights of inventors.

The report prepared by the Committee on Legal Affairs generally maintains the balanced approach of the Commission’s proposal. Nonetheless, there are some changes that should be made to bring the definitions and criteria into line with general patent law.

The Commission can accept additional reporting requirements, including the establishment of new advisory committees, provided that resource implications are borne in mind by Parliament.

The Commission cannot accept amendments which relate to the Commission’s right of initiative, or the relationship with non-Community institutions.

On key issues of substance, the Commission is strongly committed to promotion of interoperability as a means of fostering innovation and competition and to ensure that Community legislation does not act as a hindrance to different software development models – ‘proprietary’ or ‘open source’. It therefore maintains a certain flexibility as to the solution found to deal with interoperability, provided that our international obligations are respected.

On the scope of patentability, further clarification of the common position is acceptable but not significant changes departing from the current situation or from general patent law solutions. I should signal here that we see particular drafting problems with certain amendments relating to technical contribution and inventive step.

On claims to computer programs on a carrier, where such programs implement a patented invention, the Commission can accept any solution between the common position and the Commission’s original proposal, including alternative formulations to achieve the same objective of enforcing valid patents.

The Commission has noted the high number of amendments tabled in addition to the Legal Affairs Committee’s report. I will set out the Commission’s overall position on all amendments at the end of this morning’s debate.

  Piia-Noora Kauppi, on behalf of the PPE-DE Group. – (FI) Mr President, Commissioner, ladies and gentlemen, it is most important in tomorrow’s vote to ensure that the Council common position which broadens the scope for the patentability of software does not pass through Parliament without amendments.

There has been an extraordinarily large number of problems with this proposal. The Commission and the Council have taken no account whatsoever of the amendments to the proposal for a directive that a majority in Parliament tabled at first reading. The most glaring example of this can be found on the Commission’s Scadplus website. To quote directly from there: ‘the Council's common position of May 2004 did not retain any of the substantive amendments introduced by the EP’. Parliament was therefore bypassed with a shrug of the shoulders. This is not the right way to proceed, neither here nor in any other matters relating to the codecision procedure.

I hope that a majority in Parliament will support the reasonable amendments made to the Council common position, and which render the requirements for the patentability of software more stringent than they are now. It is most important to prevent the granting of what are purely software and business designs in Europe. To some extent, current practice at the European Patent Office has drifted too far into a grey area, with patents being granted on flimsy grounds.

The scope for the patentability of software in Europe should not be broadened further. On the other hand, the majority of present-day technological products make use of software and patents granted for a technological product should not be rejected simply because the software forms a component of it. It is also important, however, to ensure that patents cannot be used to hinder the creation of compatible software. It is good that we share the Commission’s opinion on this.

The directive should support European innovative research and product development in the software sector. This means that unnecessary barriers to open source software development should not be erected, nevertheless taking into account the fact that patents are crucially important to many European companies. Academic research, both here and around the world, has shown, however, that research and development input is not dependent on patents or geography. Businesses should carry out software development where the best environment for innovation is available, regardless of the extent of patent protection in a geographical region. Nothing indicates that this patentable software has to be produced in Europe: it can be produced perfectly well in India, China or elsewhere in the world and then patented somewhere else.

The aim of the directive is to harmonise the way software patents are registered at the European Patent Office and in Member States, when they are granted. For that reason, I am in favour of the directive becoming law. The common problems associated with the patent systems, slowness, high cost, and so on, are not relevant to this debate, but it has now become obvious that there is a need for Community patents. A European Community patent should be speedily drafted.

I think it is likely that the amendments that Parliament adopts tomorrow will lead us to conciliation. I would like to remind everyone that if Parliament is not satisfied with the outcome of conciliation it can always reject the entire proposal even after conciliation. On no account should a bad directive be allowed to get through.

  Maria Berger, on behalf of the PSE Group. – (DE) Mr President, I would like to start by extending warm thanks not only to our rapporteur, Mr Rocard, but also to Mrs McCarthy, who was our rapporteur at first reading stage, for both of them have done a very good job of guiding us to where we now are in this very difficult legislative process.

I was able to follow the proceedings from the very beginning, and none of the things that have gone on in relation to this draft directive on computer-implemented inventions can be described as everyday legislative work at European Union level. We have all experienced the sort of lobbying that one either finds intolerable or can regard as democracy in action, along with a lot of people assuring us that they, like we, want to see a high degree of willingness to be innovative on the part of European businesses. Despite this, there is scarcely one single definite form of words on which we have agreed.

We have just been presented with further confirmation of the fact that the Commission’s stance is extremely inflexible and that the Council’s Common Position is not in fact common to all its members. The longer we give this matter our attention, and the greater the depth in which we do so, the greater the clarity with which two things become apparent. Legislation has its limits, and I am sure that with this draft we have come up against them. Either we want to create clear and unambiguous definitions and rules for implementation, in which case there is the danger of us not going far enough and hence leaving no room for future developments, or we leave room for negotiation, and so legal certainty and legislative consistency lose out. In the normal way of things, such a conflict would be resolved by way of a legal system that worked and gave everyone, whether small or large, a more or less fair chance of legal protection and scrutiny. It is an unfortunate fact that we, in Europe, cannot take that for granted. It may be that we need, even more urgently than this directive, a truly European patent system and a working system of legal protection at European level that allows equal access to all, whether small or large.

This evening will see my group determining its final position, and I can at any rate assure you that we are very much of one mind in backing the amendments that our rapporteur, Mr Rocard, has tabled.

  Toine Manders, on behalf of the ALDE Group. – (NL) Mr President, Commission, ladies and gentlemen, I would like to express my gratitude to all of you, particularly Mr Rocard and Mr McCarthy, who have performed a small miracle with this directive – one that has caused so much tension and in respect of which a number of currents can be discerned that represent the different opinions in this House.

The key aim of this directive is to put a stop to the trickle of trivial patents through the European Patent Office in Munich in recent years, including for pure software that can apparently be patented. I have understood, and we are all agreed on this, that this directive’s common goal is to render this impossible. In principle therefore, this directive aims to improve and shore up Article 52 of the Munich Convention.

Being a lawyer, I went and looked up the relevant article. Legislation could not be expressed any more clearly than in Article 52 of the Munich Convention. Although this article is worded in very simple terms, it has, unfortunately, been interpreted incorrectly, or at least differently, in every Member State, and the result of that has been enormous legal uncertainty.

It is crucial to put a stop to trivial patents, because we have to protect and reinforce innovation and research, and with it competition and employment, within Europe. If there are no rewards, nobody will invent anything, and so I believe that a fair reward scheme should be introduced for inventors, and that they should be able to protect their ideas, their intellectual property. If not, I fear that, after labour-intensive production, which is already leaving for China, a huge number of corporate research and development departments will follow suit, particularly the multinationals, followed by the small and medium-sized enterprises. If that happens, then I think that we will live to regret the fact that it is so difficult to draft legislation in Europe, that we display a desperate lack of decisiveness and that we do not have the nerve to draft legislation which would strengthen our competitiveness globally. I think that it is regrettable for our children, as well as future generations, if we do not dare go ahead. I therefore hope that a strong directive will be drafted, and that seems to be the case.

What is the biggest problem? The biggest problem is that this House, the Commission and the Council have no democratic control over the European Patent Office, and that is what we want. That is why we Liberals have tabled Amendment 65, in which we ask for the whole of this directive to be rejected and ask the Commission to come forward with a European Community patent, so that this House can monitor the European Patent Office, which will then fall within the scope of European rules, and I think that we would have legal instruments and a legal organisation at our disposal. We would then be able to put harmonised legal procedures in place and shed light on the whole issue, which would mainly benefit the medium- and small-sized enterprises.

At the moment, if a small business wants to take legal action because of a patent infringement, it will cost them millions, which a small business can never afford. I hope that we as the Group of the Alliance of Liberals and Democrats for Europe reach a well-considered position, but I also hope that the entire directive will be voted out tomorrow so that the Commission can table a sound and well-founded proposal for a European patent that is incorporated in a directive such as this one, so that we can avail ourselves of a harmonised and well-considered directive.

  Eva Lichtenberger, on behalf of the Verts/ALE Group. – (DE) Mr President, ladies and gentlemen, what we are deciding today is whether innovation will be possible in the IT sector and whether small and medium-sized businesses will have the freedom they need in order to develop. All and sundry – the patent’s opponents as much as its advocates – are currently asserting that that is what they want.

Nobody is openly admitting that they want to patent software. The difference is to be found in the amendments themselves, and in the number of back doors to be opened up to the patenting of software. What makes a difference is whether there is a clear dividing line between technical inventions, which will of course continue to be protected by patents, and software, which is, in any case, already protected by copyright. The question is whether we opt for ten to fifteen back doors and the attendant legal uncertainty or for small and medium-sized businesses’ freedom to develop?

If, today, you decide in favour of the Council’s Common Position, you will be choosing to leave the barn door wide open to the patent business as a whole, which will progressively take over the European market. You will thereby be voting for software to be fully covered by the TRIPS agreement, and in favour of ideas becoming tradable commodities on a market in which small and medium-sized businesses will have no chance whatever to keep up, because the costs involved in developing patents and defending them in court are too great. It is not acceptable that every small or medium-sized business should be required to seek out a patent attorney to defend its own innovations.

If, though, you add your support to the broad support that already exists for the 21 amendments, you will be giving innovative and creative SMEs room to move, that is to say, the space and opportunity to develop. These 21 amendments represent our attempt at correcting the mistake made by the governments, who had obviously taken the wrong boat and had bowed to pressure from the industry.

Let us not harbour any illusions about the fact that industry wants full patentability for software, as a good source of additional income with which to fill up the cash till and, of course, as a way of driving small and medium-sized businesses, along with innovation, out of the marketplace. That much is quite clear from some of the advertisements placed in European Voice and elsewhere by such companies as SAP and the like. Take a look at them, and you will realise just what the Council’s Common Position really adds up to.

The 21 amendments will enable us to have a free market, with companies competing in the market rather than in a court of law, and so I ask you to support these 21 amendments, which we urgently need if European innovation is to develop.

  Ilda Figueiredo, on behalf of the GUE/NGL Group. – (PT) Mr President, ladies and gentlemen, this debate is indeed of huge importance because the stakes are extremely high. Intellectual freedom, technological innovation and Europe’s economic competitiveness are all in jeopardy, as scientists, professors, the student community, a number of organisations and small and medium-sized enterprises have all correctly pointed out.

The common position adopted by the Council on 7 March of this year is as unacceptable as the proposal for a directive tabled on 20 February 2002. Parliament had its say on the matter on 24 September 2004, yet the Council completely disregarded its opinion, and that is unacceptable.

As we said at the time, it is wrong to award patents to ideas, to knowledge and – who knows where it will end – to life itself. Accordingly, as we proposed at the time as regards the proposal for a directive on the patentability of computer-implemented inventions, we advocate that the Council common position be rejected. This is the most appropriate course of action at this time, and the only one that will prevent innovation and knowledge from following a very dangerous path.

As we know, the current copyright system already provides substantial protection for authors of software, giving them control over how their work is used. Yet it is wrong to jeopardise the idea that any person who knows how to do so should be able to sit at a computer and write the software that he or she wants to, or that businesses should be able to develop specific software to cater for their needs.

To concentrate the right to create software in the hands of the few would lead to dangerous restrictions. As we have seen, software has contributed towards the development of economies and has made it possible to make many tasks automatic and simplified at relatively low cost. Under a legal framework in which software is governed by patents this would not be possible.

A business or a person at home would be forced to hire a team of specialist lawyers before designing new software to check whether the idea might infringe a patent. This is therefore very dangerous ground. Unlike normal patents, which protect an invention, software patents actually encourage the improper use of ideas. In other words, software patents are tantamount to an attack on intellectual freedom and on European industry’s ability to create and develop new ideas.

What this boils down to is that software patents are simply legal mechanisms for concentrating the development of knowledge and the capacity for innovation into the hands of large multinational corporations such as Microsoft and others. Individuals and micro- and small and medium-sized enterprises would not have the wherewithal to compete in the courtroom with large companies over an abstract idea.

It is therefore crucial that we reject this Council position. As far as our Group is concerned, there is no need for any directive in this area, but were such a directive to exist, let us ensure at least that people’s rights to create innovative ideas and their intellectual freedom are safeguarded, and we trust that the proposals for amendments to which we put our name will be adopted.

  Thomas Wise, on behalf of the IND/DEM Group. – Mr President, computer entrepreneurs are amongst the most independent spirits in the world. I know how they feel, faced with the prospect of this directive. They, as much as anyone, reject the concept of restrictive monoliths. They know that the EU is just such a monolith. The directive is typical of the monolithic actions that they seek to reject.

I have worked hard in recent weeks to help computer SMEs resist this directive. However, I have come to realise that the amendments proposed by the rapporteur do not change the fundamental problem. Mr Rocard is trying to remove non-technical features of computer-controlled inventions from the scope of the directive. That in itself is laudable, but he is not seeking to stop the directive overall; in fact he is supporting it. As such, small computer companies are left, one might say, between a Rocard and a hard place.

Mr Rocard goes as far as to state in his explanatory statement that he supports the Council’s position in principle. His amendments do not reject the concept of harmonisation. They explicitly support it. One of them even says that the objective of the directive – namely to harmonise national rules on the patentability of computer-controlled inventions – cannot be properly achieved by the Member States. Sadly, Mr Rocard is one of those people, typical in the EU, who increasingly seem to think that the European Patent Office is some sort of subsidiary of the EU, when in fact it covers non-EU countries as well.

I reject this directive completely. That is why I will vote against it and Mr Rocard’s version of it. I have always said that, if the EU is the answer, it must have been a silly question. Today that is patently obvious!

  Brian Crowley, on behalf of the UEN Group. – Mr President, at the outset I would like to pay a personal tribute to the rapporteur, Mr Rocard, who has had a very difficult task in trying to find compromises and agreements on this. However, it also saddens me to say that there have been many times when I have listened to the debate on this issue both in the committee and here in the Chamber and it seems that we are totally unconnected with the reality of what is happening outside these walls.

Innovation is the very key, the very engine that will drive our economies. When people speak about ensuring that other people can use software patents, they seem to think that everybody can come up with these ideas themselves and do not need any protection or grounding in those ideas. However, from what we see from some of the people proposing some of the amendments and from some of the lobbying that has taken place on this issue, they simply want a free-for-all: no protection within the European Union, and what would that lead to? That would lead to American companies, Japanese companies, or other companies patenting the very ideas that European software developers, European innovators, have come up with and forcing those same European innovators to have to buy them back.

Patents are not a sword. Patents are a shield. They are there to defend ideas. We should ensure that the rules and regulations that we set down guarantee that those innovators have those protections and have those rights. Some of the speeches in the Chamber here and some of the lobbying material I have received over the last few weeks on this issue concern protecting small and medium-sized enterprises. I shall give you one example: In the innovative computer technology sector in Ireland, there are 100 00 jobs, 62 000 of which are in small and medium-sized enterprises. They fully support the common position on this issue, and that is why we would urge all Members to think with their hearts, but most importantly with their minds, about what protection they would like to see if they have ideas.

This is not about harmonisation; this is more about mutual recognition of 25 varying and different regulations in the Member States to ensure that small companies, small innovators, can be guaranteed legal certainty and financial certainty with regard to the protection of their ideas and the promotion of them.

  Bruno Gollnisch (NI). – (FR) Mr President, are computer programs patentable? The giants in the IT world, such as the US companies IBM and Microsoft, have no doubt about it. For the majority of innovative SMEs, but also for professionals linked to the software industry, such as programmers, researchers and independent developers, the patentability of computer programs will be tantamount to a death sentence. This weighty issue has shuttled back and forth between the European Parliament and the Council of Ministers for over two years now. The result of this parliamentary marathon could be the approval of a Bolkestein Directive – yet another – on the patentability of computer programs.

The European Patent Office, contrary to both the letter and the spirit of the law, has issued over 30 000 patents to projects for mathematical calculations or methods of processing or displaying data. Often, these patents are as wide-ranging, trivial and damaging as their equivalents in the USA. I believe that the patentability of computer programs must be rejected for many reasons, the main reason being that computers use languages and that the words of a language cannot be patented, as this would prevent others from using them freely. It is the specific combination of these words that is protected, a protection achieved by copyright in precisely the same way as copyright in music covers a score, not the musical notes themselves. Moreover, this is precisely the principle established by the Munich Convention.

Why revise this part of established law? Why abolish copyright? Abolishing it would make it impossible to write new computer programs. How can we imagine life in a country where a company could be granted exclusive rights just because its document contained letters in bold script and sub-titles in italics or used the progress bar, the double click or the electronic shopping basket - things that have already been patented in the USA? We must refuse the Commission and the Council this licence to kill off innovation by the small software producer.

  Klaus-Heiner Lehne (PPE-DE). – (DE) Mr President, ladies and gentlemen, while I am obliged to the rapporteur and the shadow rapporteurs, I particularly wish to put the spotlight on our own group’s shadow rapporteur, Mrs Kauppi, who has endeavoured in a quite splendid fashion to hammer out sensible compromises and reach a sound solution, thereby demonstrating expertise to an extraordinary degree. The work she has done on this leads me to hold her in the highest regard.

Let me once again spell out something that became apparent from the debate in the Committee on Legal Affairs: nobody, that is no political group, wants software patents, although I cannot exclude the possibility of private individuals doing so. That, in any case, is not what this directive is about; it was in fact intended to prevent the law developing in Europe in the way it has in the USA. That is its purpose, a purpose that the Common Position fulfils.

At the end of May, we received a position paper from the Chamber of Commerce and Industry in Munich and Upper Bavaria. Rather like the Irish situation that Mr Crowley described earlier, the greatest concentration of small and medium-sized software developers in Germany is to be found in this area around Munich. They organised a hearing, the result of which left no doubt about the fact that they believe that the Common Position – capable of improvement though it is, of course – meets the conditions laid down and resolves the problems.

In the Committee on Legal Affairs, we made a whole array of vital improvements to the Rocard report by way of 39 amendments, making some things clearer – such concepts as ‘interoperability’ and ‘technical definition’, for example – and creating options. What the Committee on Legal Affairs has produced, then, is a report characterised by moderation and making it possible to resolve any problems that still remain. Mr Rocard’s amendments, and those put forward by the other groups in this House go well beyond what is intended.

A few months ago, we sat down together here and renewed our commitment to the Lisbon Process, at the heart of which – among other things – is a knowledge-based society in Europe. Having no raw materials, we have to rely on our brains, our knowledge, and the skills of our people. If we were to allow a situation, brought about by excessive amendments, in which most of Europe’s high-technology could no longer be patented, we would be jeopardising the means for future generations in this continent to earn a living, and so this position is indefensible and the overwhelming majority of my group will not countenance it.

Let me touch on one other point, and a significant one, that being the issue of what people are calling motions to reject the Common Position. This is an option that our group will, this evening, have to consider, and two factors make it worth our while to do so. The first is that we gain nothing if, as a result of the Committee on Legal Affairs’ amendments, we have to endure a long conciliation procedure, only to see the directive lost at third reading by simple majority. Secondly, we do not want to end up with a directive that is so warped by Parliament’s amendments that it ends up being detrimental to the Lisbon process and to Europe itself. If that is what it is going to be like, then we would rather not have the directive at all. This issue, then, is one on which our group will be reaching a decision this evening.

  Andrzej Jan Szejna (PSE). – (PL) Mr President, the introduction of patents for computer software will not only be damaging for European small and medium-sized enterprises, scientific research and the IT sector as a whole. It would above all be damaging for the average citizen, who has a computer on his or her desk and who already pays through the nose for expensive, protected software.

Assessments by independent experts have shown that the Council common position would enable the patenting of computer programs. The text that Parliament received two years ago, however, can be said to sneak this possibility in through the back door.

The Committee on Legal Affairs adopted amendments that fail to ensure that a proper compromise will be reached, and that do nothing to remove the most important areas of controversy and doubt, especially with regard to the most pressing issue, namely the definition of what may be granted patent protection. They will do little to help us move away from the overly liberal practices currently employed by the European Patent Office when assessing applications involving the use of computer programs. They lack the useful provisions of the Draft recommendation for a second reading of 29 April and 4 May 2005, which could have contributed to making a clear distinction between what is and what is not an invention.

There is a real threat that the directive will not have a harmonising effect, since not only does it not clarify the most controversial issues, but it even strengthens existing doubts. It can also be interpreted as evidence of the overly liberal practice of considering solutions involving the use of computer programs to be inventions, pursuant to Article 52(2) and (3) of the European Patent Convention signed in Munich.

It is our duty to vote in the spirit of the first reading and in the spirit of the ideas put forward by Michel Rocard, and to support the decisions of our colleagues in the previous parliamentary term. We must do so not only to ensure that their work does not go to waste, but also, and primarily, in order to protect the free software market, to protect small and medium-sized enterprises and to boost the development of innovation. At the same time, we should not forget that intellectual property must be guaranteed proper protection within the common market.

  Sharon Margaret Bowles (ALDE). – Mr President, the issue of the territorial limitations of contributory infringement is the reason why software product claims were originally written and permitted by the European Patent Office. The new approach in my Amendment 66, eliminates software claims and therefore the concerns they raise, but extends contributory infringement provisions that already apply within most Member States so as to cover imports from China, Russia or elsewhere. This proposal, along with those for monitoring the European Patent Office, sits more conveniently in the context of the Community Patent and how it may be properly administered, which is where this whole matter really belongs.

Mr Rocard, your amendments really focus on little more than programs on personal computers rather than the vast array of important technology that depends on computer-implemented inventions. Almost all areas of technology are linked with use of programmable apparatus. From fermentation control for antibiotic growth to aeronautics or telecommunications, the list is endless. Programmable devices are everywhere, in almost everything you can plug in or switch on, and your amendments interfere with them in apparatus and method terms, not just software. Your simplistic exclusions of data processing exclude signal processing and digital technology. Information is a term used since the earliest times of radio to distinguish signals from noise. Applied natural science excludes engineering. The expression ‘controllable forces of nature’ is a legal nightmare for many Member States. Collectively, your terminology wipes out patentability throughout huge areas of technology, not just programming.

If you wished to construct a series of amendments to cripple and disperse Europe’s industry, large and small, you could not devise anything more mischievous. I am sorry but, for the real world of industrial technology, your blunderbuss amendments are simply not good enough.

  David Hammerstein Mintz (Verts/ALE). – (ES) Mr President, this misleading and ambiguous Directive is a dream for patent lawyers and at the same time a nightmare for small software companies, consumers and freedom of expression on the net. Because we are dealing with a Directive that is rejected by more than 90% of small software companies in Europe. We are dealing with a monopoly directive – a genuine monopoly directive – since it is an anti-liberal directive.

It is a Directive that promotes a world like that of the Rockefellers and Morgans at the beginning of the last century. It is a world that does not benefit small European companies, whose number is increasing, often in the least-developed regions of Europe, such as Extremadura, in Spain, where hundreds and hundreds of new software companies are being developed. These companies are under threat, as are those being developed in Poland and in all the enlargement countries.

There have been many lies here. It has been said that we are against patents on technical software: that is not true. We are of course in favour when it comes to the physical world, the forces of nature: a washing machine, a car ... nobody is against those patents! But we are obviously against patents that truly threaten the flow of information and innovation. Much has been said about innovation. There has been confusion between patenting freely in an unrestricted fashion and innovation, which are two entirely different things.

What we are defending is the right to develop software, to develop the industry. And this Directive is going to create restrictions and many obstacles to true innovation within this continent called Europe.

We believe that we deserve a world of software, a world of enterprise, a world for consumers, that is open to true innovation.

  Umberto Guidoni (GUE/NGL). – (IT) Mr President, ladies and gentlemen, although it is stated in the common position that there is a desire to exclude the patentability of pure software, the conditions are, in fact, being created for eventually patenting software algorithms.

Unlike copyright, which protects the whole program, software patenting would allow a monopoly on the use of general instructions. By patenting those algorithms, in a complex program that is nothing more than a combination of thousands of instructions, hundreds of patents could be simultaneously violated. Linux, for example, which is now used in various programs including those used by governments, is said to violate 283 US patents. Introducing patenting rules could therefore mean the end of a free and open source software, at least in Europe.

If the patentability of software were approved, as US multinationals and the European countries that profit from the US monopoly very much want, a shift in costs would occur from the technology and innovation sector to the legal and insurance sector. All of that would contribute to excluding small and medium-sized enterprises from the process of software development because of the costs and the legal complexities. All in all, there would be less competition and less innovation and European consumers would have to put up with increased costs and reduced choice.

The Lisbon Strategy on the European economic model combines together technological innovations, competitiveness and solidarity. The Council position is at odds with that, however. The software patentability directive, attacks the right to the free transfer of knowledge and calls into question the objective of an information society that is accessible to all.

For that reason, the battle against the patentability of software that we are conducting in this House has become a battle for freedom and democracy.

  Johannes Blokland (IND/DEM). – (NL) Mr President, the reason why we have a proposal on patents for software-related innovations to consider is that current practice leaves something to be desired. Differing opinions about whether software can or cannot be patented make the legal framework ambiguous, and so the logical way forward would seem to be to introduce fresh legislation in this area. The question remains whether the common position offers a balanced solution that is appropriate for both large and small companies. It is unfortunate that even experts have been unable to state whether the directive will promote innovation in small and medium-sized enterprises, or whether it will in fact put obstacles in their way and hamper innovation. It has proved impossible to remove the fear of unwanted consequences among small enterprises, to whom the following three aspects are of major importance.

The first is the accessibility of patent applications. The costs involved in obtaining a patent are prohibitive, and to this the directive offers no solutions. The second aspect is the extent to which SMEs can protect themselves once they have a patent. Is it practically feasible for them to constantly monitor whether another company is infringing it? Moreover, they do not have the personnel or financial resources to cover themselves against accusations of infringing other companies’ patents. The directive in this form entails the risk of a considerable level of litigation involving software-related innovations. Thirdly, there is the problem of high licence fees when small companies use software produced by patent holders. Moreover, it is unclear what the impact of the directive would be on the use and development of open-standard software.

Although this House has tabled amendments in an attempt to address the areas of concern, these have met with little response from the Council. As the common position as it stands is unconvincing and the Council seems unwilling to change tack again, the common position should be rejected.

  Roberta Angelilli (UEN). – (IT) Mr President, ladies and gentlemen, innovation and research have to be a shared heritage and not a privilege for the few.

It must therefore be forcefully stated that the patentability of software as such must be prevented. It is important to point out this principle, in order to obtain a directive that represents a legitimate middle way between uncontrolled patenting, which risks paralysing innovation and competition, and the need to adequately safeguard those who, by means of their own inventions, can genuinely present added value in the market.

We call, furthermore, for patent applications to be assessed with the greatest of attention, account being taken of innovation, originality and industrial applicability. This is the only way to prevent an excessive extension of patent rights prejudicing small and medium-sized enterprises, and, consequently, the proliferation of patent disputes, as has been happening for 15 years now in the United States.

To conclude, we believe that it is a positive idea to create a fund offering financial, technical and administrative support to SMEs moving towards patenting. In particular, we believe that it is crucial to draw up an appropriate European patent regime, aimed at guaranteeing equal access for small and medium-sized enterprises.

  Luca Romagnoli (NI). – (IT) Mr President, ladies and gentlemen, in the space of a few years, the constant flourishing of ideas in the information technology sector has enabled the gaps in technology and information to be reduced.

Software patenting stifles free invention – which up to now has been possible even without much capital – in order to protect a monopoly on the use of generic techniques, the outcome of mercantile absolutism which is extremely dangerous in political terms.

It is a serious bar to the freedom of ideas and to their reinterpretation, which serves only to hold businesses and government administrations hostage to the Microsoft lobby and to the small number of non-European multinationals.

Patents amount to a danger to the development of open source software and a threat to all of the Italian and European information and communication businesses – which are primarily small and medium-sized enterprises or even microenterprises – as well as an economic threat to the diversification of government information systems.

To defend the freedom of scientific research, the right to the transfer of culture and knowledge, not to say the protection of individuals’ fundamental rights, we have to save Europe from software patenting by opposing the European directive that proposes to introduce it and by supporting the amendments tabled by Mr Buzek, Mr Rocard and Mr Duff.

  Giuseppe Gargani (PPE-DE). – (IT) Mr President, ladies and gentlemen, as chairman of the Committee on Legal Affairs, I particularly feel the need to congratulate Mr Rocard, Mrs Kauppi and Mr Lehne on the work they have done, as well as all of those who have dedicated themselves to these extremely difficult negotiations.

I have to say that the Committee on Legal Affairs has reached an acceptable balance in keeping with the cultural choices and the debate that has taken place up to now in this Chamber and elsewhere. Naturally, it is my duty to uphold this balance, because it is a product of this Parliament.

Like all of those closely following the issue, I too consider it useful to have a harmonisation directive on the patentability of computer-implemented inventions, the objective of which is to eliminate the ambiguities and uncertainties arising from the adoption of various interpretative practices by the patent offices of the Member States and to precisely lay down the scope of such protection.

It must, however, also be taken into account that adopting the patenting directive can only spur on the process of technological innovation if two fundamental factors are resolved. Firstly, the ambiguity surrounding the concept of technical contribution has to be eliminated, as it would thwart the effectiveness of the directive as a means of harmonising the procedures for issuing patents. Secondly, a precise and incisive provision on the issue of interoperability has to be adopted, preventing the development of standardised solutions in the field of ICT.

The goal of harmonisation cannot be achieved if it conflicts with the principles on which the existing patent regime is based, which, over the years, has proved to be a suitable instrument and an effective incentive for the world of industry, for both small and large businesses. One need only think of the increasingly frequent convergence of information technology and telecommunications, allowing businesses to supply and use integrated software packages and computer-implemented services. In order to allow these new packages to be suitably developed, we must ensure that it is possible to combine copyright protection with patent protection for computer-implemented inventions, without software being patentable.

Particularly in these difficult times, Europe has to address the issue of competitiveness. Patenting has to aid the European economy and European citizens. If the directive were not clear, it would work to the advantage of non-European businesses and we would be failing in our job and in our duty towards the Lisbon Strategy, towards the new social project about which so much is spoken and towards development.

As I have already said, the Commission has carried out a valuable piece of work because it has been able to go beyond the common position. The task of fine-tuning the text by pointing out the unclear points is now the responsibility of Parliament. If that does not occur, the Commission will be responsible for a non-sectoral proposal, which is almost impossible to specify, rather than for a comprehensive proposal on patenting as a whole that can satisfy small and large businesses.

I should like to address this request jointly to Parliament and to the Commission.

  Manuel Medina Ortega (PSE). – (ES) Mr President, the previous speaker, Mr Gargani, has expressed his concern about the balance of the position that we adopt with regard to this proposed directive. I believe that the rapporteur, Mr Rocard, and Mrs Berger, in their Amendment 53, have emphasised what the objectives of this balance should be, when they say, ‘the conditions for granting patents and the modalities for enforcing them must be carefully designed. In particular, inevitable corollaries of the patent system, such as restriction of creative freedom, users’ rights or legal insecurity and anti-competitive effects, must be kept within reasonable limits’.

The amendments presented by Mr Rocard and Mrs Berger are intended to maintain that balance, firstly, with regard to inventions applied by computer: we are not talking here about computer inventions. Computer inventions — computer programs — are already protected by a Community Directive of 1991, which established intellectual property rights or, if you like, authors’ rights. And that Directive is in force.

What we are talking about here is something completely different: inventions applied or assisted, as some amendments put it, by computer, that is to say, equipment that uses computer programs. We must take enormous care not to confuse the two things and as a result prevent the exercise or development of creativity by computer.

Specifically, Amendment 50, presented by Mr Rocard and Mrs Berger, aimed at maintaining the right to inter-operability of computer programs, is very important. The fact that there may be a patent on a particular aspect of a computer program must not prevent creative freedom or the use of computer programs for continuing development. That inter-operability clause, which is advocated in Amendment 50, is also advocated in a slightly different text – Amendment 68 — by Mrs Mann, Mrs McCarthy and Mrs Roth-Behrendt.

In conclusion, we must prevent any possibility of the development, experimentation, manufacture, sale, the grant of licences and the import of programs that make use of a patented technique in order to ensure inter-operability from being considered a violation of patent. In summary, the amendments presented by Mr Rocard and Mrs Berger are aimed at maintaining the possibility of creativity in this field and at ensuring that, where possible, projects such as the LinEx project, implemented by the Junta de Extremadura, in Spain, can move ahead to the benefit of creative innovation within the European Union.

IN THE CHAIR: MR SARYUSZ-WOLSKI
Vice-President

  Vittorio Prodi (ALDE). – (IT) Mr President, ladies and gentlemen, patents are an important factor in technological progress. It is necessary, however, to think back to the original significance of the pact between the inventor and society, by which the inventor has a temporary monopoly of exploiting the invention, whilst society benefits from the increased knowledge arising from full disclosure of the content of the patent and therefore the basis for further progress.

I believe that it is desirable to analyse how certain patents are presented. I have the impression that we are witnessing a growing trend towards generic patents, precisely in order to make the claims as broad as possible. It appears to me that law firms have gained the upper hand and that the loser in this game is society as a whole. That must be particularly stressed with regard to software. In actual fact, a great many of the patents granted are nothing more than a vague description of a logical process.

As far as software is concerned, I believe that copyright protection is sufficient. With this in mind, I supported many of the amendments tabled by Mr Rocard, whom I thank for his commitment as rapporteur. In that regard, I indeed believe that the period of protection could be shortened. If, however, inventors aim for a higher level of protection, such as a patent, they will not be able to waive full disclosure of the invention and they will have to make that the mandatory basis for the claims. That also applies more generally in order to limit the possibility of legal uncertainty.

From that standpoint, I believe that Parliament has to carry out a more decisive role in the context of strengthening the Union, partly by setting out a common position in respect of the European Patent Office.

Personally speaking, I am in favour of a reform simplifying the procedures, including the adoption of a single language, that is to say, English, by means of rules also allowing small and medium-sized enterprises to utilise this fundamental instrument.

  Rebecca Harms (Verts/ALE). – (DE) Mr President, I have to tell you that the whole debate in this House about software patents largely gives the lie to the constantly-repeated mantra disseminated by the European institutions throughout the continent, not least by means of Commission and Council initiatives, to the effect that we want to do all we can to protect the vital interests of small and medium-sized enterprises.

The software industry has grown well and prospered in Europe, and it has done so on the basis of perfectly adequate rules on copyright and reverse engineering, those in some areas derived from patent. Why, then, do we need these new rules in the first place, when over-regulation is so much in the air? If what is now proposed for software patents actually goes through, it will benefit only two or three big firms, mainly Microsoft and SAP, one American and the other a major German firm, and perhaps also Siemens and firms of that kind. It will, however, damage the vital interests of many small and medium-sized enterprises that have been very successful over recent years.

The rules on software patents that we are debating here today could well turn out to be a job-creating measure – the jobs in question being created for lawyers, who will have a lot to do if we do not reject the demand made of us today.

  Vittorio Agnoletto (GUE/NGL). – (IT) Mr President, ladies and gentlemen, over and above the official statements, a change has been added to Article 2 allowing patent protection to also include the software contained in a computer.

That opens the door to the patentability of software. It is as though it were possible one day to patent scales, notes and chords. It is as though the pentatonic scale were patented, as a result of which all of a sudden a large proportion of blues music would be in violation of such a patent and all writers would have to pay royalties to whomever had registered it.

Patents have already been requested for ideas that are not new, such as the mouse click to carry out a command or the inequality operator in open source software, and for other unoriginal ideas that are today used in practically every software package in circulation.

Furthermore, if interoperability were to be obstructed by patents on programs and consumers were forced in all cases to only purchase and use products made by the same company, there would be huge consequences, mainly of an economic nature. No company must be able to build a monopoly through patented software. A small business would find itself having to sustain enormous expenses, on the one hand in order not to carry out any violation of the patent, and, on the other hand, to defend its own actions in court. Competition would therefore no longer just be a market issue, but would also become a legal issue.

Let us think about all of the university and hospital research institutes that today, thanks to the absence of this directive, carry out research by saving on software because they use programs devised by the institutes themselves, and which are therefore free of charge, or alternative software costing much less than Microsoft products. Without patents on software, Europe could keep costs low, stimulate innovation, improve security and create employment.

To the title of the Harvard Business Review ‘Patents are smart bombs’, I would add ‘against the prospect of enabling the future interaction of different cultures and worlds’.

  Kathy Sinnott (IND/DEM). – Mr President, software programming is of enormous importance to my constituents in Ireland. So much so, I have received literally bags of correspondence asking me to vote one way or the other. Understanding the nuances and repercussions of our decision is certainly not an easy task. Today, what we are talking about, to put it simply, is the ownership of ideas. In software, the great ideas of yesterday are the building blocks of the great ideas of tomorrow. These ideas can be used by all to further the science and to drive progress.

One of the beauties of the software industry is that a lone programmer can sit down and write an interesting program. He can give it to others in exchange for a fee or he can put it on the open source domain where everyone is free to use it and to add to it. By its nature what he has done is straightforward and millions of people do exactly what he has done. That is what has driven innovation to date and has propelled forward the information society and the state of the art.

How much innovation do you think will occur if that lone programmer needs to contract a team of patent lawyers? If we here tomorrow decide to add patentability to software, programmers all over Europe might be breaking the law without even knowing they were doing so until it was too late. If we allow patents, how much of the creativity and freedom to think will be stifled by the fear of infringement of one of the hundreds of thousands of patents that will exist? Patents that are registered or bought will control the very tools the programmer must use to exist as a programmer. I urge Members to support every amendment that retains freedom from patentability. This will give us the strongest position when we negotiate with the Council.

  Marcin Libicki (UEN). – (PL) Mr President, in the same way that a doctor should not harm his patients, this Parliament should not harm the societies that have elected it. Our first concern should be for freedom, and in particular for freedom of economic activity.

This begs the question of whether any rules are needed in this matter at all. Given that we have witnessed the unprecedented development of computer software over the past decade or so, do we now really need to introduce detailed rules to regulate it? Things were going well, so why spoil them? The economic success that has been achieved is obvious, and any new rules we adopt now would only stand in the way of further success.

Competition is absolutely crucial, since it is the ‘yeast’ of economic success, or rather the driving force behind it. On the one hand, it is true that large companies have opportunities to conduct new research that are not open to small companies. On the other hand, however, once large companies gain a monopoly they have a tendency to fall victim to lethargy and stagnation. Monopolies are never conducive to economic success, whether they are state monopolies or monopolies held by large companies. When we vote on this report, and above all when we vote on the amendments to it, we must take care not to bring about a monopoly held by large companies, as this would be extremely damaging.

Above all, we must remember that we should not harm small or medium-sized enterprises for the sake of economic success. Most importantly, we should not harm the average users of computer programs, since this would turn out to be in no one’s interests.

We are in favour of protecting freedom and economic success, rather than oppression and lethargy.

  Sergej Kozlík (NI). – (SK) The only directive that comes into consideration is one that clearly establishes the criteria necessary to distinguish between patentable inventions implemented by computers from non-patentable inventions, thus providing effective protection for such inventions in the EU Member States. The directive should bar the attempts to patent unpatentable items, such as trivial non-technical procedures, trading methods and the patenting of pure software.

The main point is the draft amendments whereby the phrase computer-implemented invention is to be substituted by the phrase computer controlled invention or computer assisted invention, and which define the concept of technical contribution and, more precisely, which also define the terms that are important for judging the technical nature of the invention, and clearly establish that the rights to pure software, or even to media, are not inadmissible. Otherwise we will be unable to support the draft regulation.

  Hans-Peter Mayer (PPE-DE). – (DE) Mr President, although it is claimed that we are debating one of the most controversial pieces of legislation, that would be the case only if half of us were in favour of it and half against. The proportions are, however, quite different, for the overwhelming majority in this House endorses the objective of this legislation, embodied in the unambiguous principle that software alone is not capable of being patented.

This legislation does no more than to protect software by way of copyright. Just as not just individual sentences are protected by copyright, but rather the book as a whole, so it naturally follows that not merely individual lines of software are protected, but rather the work as a whole. What our economy does, of course, need, though, is patents, for patents denote and indicate a knowledge-based economy, which produces such things as technical advances, inventions with such additional requirements as novelty, whether they be computer-based, computer-implemented or computer-managed.

Why do we need this legislation? We need it in order not to end up in the situation that pertains in the USA. We are well aware that over 30 000 patents have already been taken out on software, and we want to stop that going on in the future. The legislation is needed if we are to do that. We are in fact protecting ourselves by having the Commission monitor this and report back to us in three years’ time as to whether, despite our efforts at closing them by way of the latest compromises, there are still loopholes, and if there are, it must report them to us, while also giving us an account of the ‘open source movement’ that will enable us to turn our attention to that in three years’ time and close any loopholes that may have opened up.

This is not, therefore, the end of the story, and not just because we have yet to reach agreement with the Council; we will also be continuing to observe the way in which our legislation is put into effect and will reserve the right to take further action in three years’ time on the basis of what emerges from that.

  Arlene McCarthy (PSE). – We have the opportunity to lead the world with good patent law, but are we up to the task? The legal framework is clear: Article 52 of the European Patent Convention states that software as such cannot be patented. All of us believe that we must set clear limits to patentability. We simply do not agree on how best to do that.

We need to tighten up the law and ensure that examination practised does not permit the patenting of software or business methods. However, let us not forget that it is our inventiveness and capacity for innovation in software and dependent technologies that can help Europe to meet its objective of being the world’s most competitive economy by 2010.

At a time when our traditional industries are migrating to China and the Far East, we have to rely on our inventiveness to earn our living. The revenue secured by patents and by licensing out our inventions to our global competitors gives us a return on the investment and assists us in creating jobs and growth.

SMEs that are inventors argue that without patent protection they are in no position to negotiate with big business or protect themselves from larger companies ripping off their inventions. They need patent protection that is affordable and enforceable against industry giants. But we must also ensure that small software developers are not faced with a minefield of trivial patents. They must be able to innovate, write and develop lines of code and produce software processes without violating or breaking patent law.

There are a number of amendments that could solve this problem so we can have a balanced, workable EU law which will not permit backdoor patenting but will ensure that, in an increasingly cut-throat and global arena, Europe’s most inventive companies can have access to patents and challenge US dominance in this field.

Mr Crowley said that we could find ourselves in the perverse situation of paying out licence fees to US and Japanese companies for the very patents and innovations that we have invented. In fact, add India to that list. In its new Patents Act of 2005, India now allows embedded systems to be patentable. Are we seriously saying that here in Europe we value our inventiveness less than those countries new to innovation and inventions?

  Andrew Duff (ALDE). – Mr President, Parliament faces a great strategic challenge to create a regulatory framework that will stop the spread of patentability of software. Tactically, our first task tomorrow must be to defeat the simplistic proposals to reject the second reading. We must ensure that we are able to progress steadily to amend the common position. It is simply through the conciliation procedure that a first-class piece of law will be created. To fail to legislate at all would leave the industry at the mercy of the EPO, the courts and the panels of the World Trade Organization. I am afraid that would be a costly, legalistic and confusing situation.

  Paul van Buitenen (Verts/ALE). – (NL) Mr President, the way in which the software patents proposal came about is, to my mind, scandalous. Big businesses, such as Microsoft, see software patents as a means towards financial gain and, through the Business Software Alliance, they have had a hand in drafting the Commission proposal – a fact discovered by accident, as a result of the name of the author being left in the document by mistake. The Commission’s proposal bears the stamp of the incestuous culture of patent office managers, big companies’ patent lawyers and the Commission’s patent managers. Even though this House took corrective action in 2003, the Council of Ministers managed, by dint of dubious voting procedures, to put the proposal back on the table. There was no qualified majority of Member States and requests by various Member States to reopen negotiations were rejected out of hand.

Even in the Netherlands, the debate about software patents is dubious. While parliament was misinformed by the government, the Dutch officials continued to work on the proposal within the EU committees. The Dutch minister ignored parliament when decisions were taken in the Council of Ministers. I therefore support the amendments to reject this proposal. In my view, this House is making itself a laughing stock if it tolerates the way in which this legislative proposal came about.

  Erik Meijer (GUE/NGL). – (NL) Mr President, in 1991, Microsoft was a small company that had to compete against the bigger ones. Then Bill Gates told us that industry would grind to a halt if all our old knowledge were subject to patents, with a handful of giants able to impose unlimited payments on newcomers. Now that his firm is one of the giants, his lobbyists tell an entirely different story.

The campaign against software patents has been going on for a long time. Their opponents persevere and have sound arguments. I agree with the ‘Foundation for a free information infrastructure’, which claims that software patents put the freedom of software development at risk, and that software patents, by promoting monopolisation and pushing up prices, are detrimental to innovation. That, in turn, impacts on software companies, Internet shops, schools and consumers. Do we want to create a situation in which computers are in the hands of one, or a few, software providers?

Tomorrow, we need at least 367 votes to amend or reject the Council’s text. I urge all those opposed to software patents to be present in force. We will then choose open source and creativity rather than the concentration of power and monopolisation.

  Hans-Peter Martin (NI). – (DE) Mr President, I wish, today, to address those who are not here – not all the 450 million Europeans, but those who are waiting outside this Chamber, and those who pestered us with e-mails, faxes and telephone calls. I think it is wonderful that they did so. What we are seeing happening today and will see happening tomorrow is important in terms of what democracy will be like in the Europe of the future. People are getting worked up about things that will affect them. We have seen for ourselves how the multifarious arguments put forward in this House are often far more astute, far more detailed, and far more precise than what we ourselves are capable of coming up with amidst the deluge of other decisions that we have to take.

After five years in which Members moved 5 500 amendments and voted on 50 000 additional items, none of us can claim to have really got to the bottom of it all. The input we received was good; it won me over. I am persuaded that we will be doing democracy, small and medium-sized enterprises, even, indeed, economic prosperity a favour if we vote against these software patents. As for those standing outside with their whistles and T-shirts, I would like to encourage them to stick at it, to publish the results of the vote, to show how each one of us actually voted. That way we will see whose bidding the Members of this House have done: that of the parties with their resolutions, that of the lobbyists, or that of their own consciences.

  Marianne Thyssen (PPE-DE). – (NL) Mr President, it is still persistently asserted that the proposal we are debating today would affect mainly small and medium-sized enterprises, and in a negative way at that, but it is mainly SMEs that stand to gain from greater legal certainty and a uniform application of the legal rules on the internal market. I have always believed, and I am still convinced, that SMEs do not have a specific problem with this proposal, but a general problem with the patent system as such, both in terms of access and justification.

At first reading, we voted on an amendment in which the Commission was requested to report on the effect of computer-implemented inventions on SMEs. At that time, I specifically asked the Commission to carefully reconsider the way in which, via a European approach, SMEs can be guaranteed a more advantageous position as regards patents.

I was delighted to find another four amendments in the Rocard report in which particular attention was drawn to this sector of industry. Many SMEs, though, consider this to be mere lip service, far from sufficient, and something in which they no longer have any confidence. They want facts and results, and so there are several things I would like to be told.

Why has the Commission, since it became aware of this issue and these concerns among SMEs – which was back in early 2002, three years ago now – not taken any concrete measures that would benefit SMEs? Surely there is plenty of material to work on, since tens of thousands of computer-implemented inventions have already been patented in Europe.

Secondly, will the Commission be doing something concrete for SMEs and what does it have in mind? I would like to have a clear answer. My question expresses the concern of large groups of SMEs and your response, Commissioner, will influence the way I vote tomorrow.

  Adam Gierek (PSE). – (PL) Mr President, the proposal for a directive by the Commission and the Council is unacceptable for a number of reasons. The most important of these is the fact that in Article 4 it does indeed prohibit the patenting of computer programs, before immediately afterwards, in Article 5, leaving the door wide open to such patents if they relate – and I quote – to ‘a programmed computer [or] a programmed computer network’. The question arises of what is really at stake here. In my opinion, what is at stake is the enormous market for software that exists in the European Union, and the establishment of a monopoly over it. What is at stake is at least several dozen billion euro. The threats posed by the unamended directive are as follows. Firstly, that the software market will be monopolised by major players from outside Europe who are powerful in financial terms. This is very dangerous for the EU in the global environment, where everyone competes with everyone else.

Secondly, that a number of small and medium-sized computer enterprises involved with software in Europe will be made bankrupt. Thirdly, that those holding the patents in, and hence the monopoly over, the services sector, by which I also mean Internet services, will dictate the prices. Fourthly and finally, that a major threat will be posed to democracy in Europe, given the importance of the Internet as a media form.

In his capacity as rapporteur, Mr Rocard has put an enormous amount of effort into getting to grips with this complex issue. His proposals defend ‘open source’ principles, which is laudable, as well as defending democracy against the dictatorship of monopolies. At this stage in the legislative process, they will result in a conciliation procedure, which I believe will give rise to the optimum solution.

Like mathematical theories and the very process of thought, software cannot be patented. What can be patented, however, are inventions created with the help of computers, and indeed this already happens. Such patents contain technical ‘independent claims’, which relate to tangible systems, and ‘dependent claims’, which are only valid in the context of a given patent, and which may include references to computers and all aspects of their operation. This field of invention, which is key in terms of the automotive, home appliances, mobile phone and other industries, for example, should however be regulated.

  Mojca Drčar Murko (ALDE). – (SL) In patent law, an invention is subject to a special form of legal protection. It is not the tangible implementation of a particular idea that is protected, but the idea or concept itself. Therefore, the invention is always something intangible. This dual nature of patent protection gives rise to difficulties with the effects of patent law in real life, when it comes face to face with the interests and rights of the creators of software. The problem, therefore, is that on the one hand there are companies wishing to use patent law to protect their investments in research and development, while on the other hand there is society, and the individuals in it, striving to retain a range of common intellectual achievements available to all.

As lawmakers we must take both sides, of those who believe that the dividing line is beginning to encroach upon territory that has traditionally been the subject of patent protection and of others who stand in opposition to the belief that the common position of the Council does not totally exclude the possibility of the patentability of software. The majority of the amendments proposed by the Committee on Legal Affairs come close to bringing about a more balanced definition, so they seem to me to be a useful addition to the common position and a good basis for a final decision.

  Ryszard Czarnecki (NI). – (PL) Mr President, today is an important day for the European Parliament, as we have a real opportunity to prove that this House does in fact represent millions of Europeans. The reason for this is that we can defend – and defend very effectively – the interests of millions of computer owners, as well as the interests of hundreds of thousands of small and medium-sized enterprises. E-mails and letters have been written and appeals made asking us to do so.

In my opinion, the European public has suddenly realised that a Europe of citizens needs the European Parliament. We should not act as the spokespeople or lobbyists of large companies; instead, we should act as the spokespeople of the grass-roots social movement that is campaigning against misguided decisions by EU institutions. These decisions may only be put right by another EU institution. The issue at stake here is not only, and not even primarily, patents for computer software. The most important aspect of this debate is the public pressure, which opens up an enormous opportunity for Parliament to represent citizens not only in splendid theoretical pronouncements, but also in practice. We should seize this opportunity.

  Erika Mann (PSE). – (DE) Mr President, Commissioner, ladies and gentlemen, unlike many Members, I wish to point out that, in the course of our deliberations, all – or at any rate, most – of us have agreed that we want patents in the field of computer-implemented inventions, and that our European industry’s great strength is dependent on us getting them. The present situation is schizophrenic in that businesses wanting to take out patents in this field can do so, and the Commission proposal actually did no more than argue in favour of more harmonisation across Europe.

I think all Members will agree that the second thing we want to avoid where patents are concerned is to go down the road taken by the Americans, which would make possible such things as the patenting of software-to-software, when what we want, to put it quite simply in computer language, is software-to-hardware.

The great problem we now have is to really tidy up the language. With the vote due to be held tomorrow, I would like to again ask the Commission how this can be done in view of the very large number of amendments before us, the main ones being those relating to interoperability, tabled by Mr Rocard and others, by Mrs Kauppi and by me. I would like to know where the Commission stands on these various proposals, most especially as regards compulsory licensing or limited exclusions for simple software-to-software. Perhaps the Commissioner has something further to say about this?

  Marco Pannella (ALDE). – (IT) Mr President, ladies and gentlemen, as radical Members we have been engaged in this issue, particularly with Mr Cappato, since the last parliamentary term, and we have made Parliament’s position very clear, but it has not been accepted.

Today we find ourselves debating it once again, in a situation in which we have speeches from the far right to the far left of our Parliament in support of the market, something that, as a Member of the Group of the Alliance of Liberals and Democrats for Europe, I particularly welcome. It is a market threatened and corrupted by the jungle of the bureaucratic army, which, as a supporter of the large monopoly and oligopoly groups, is prepared to use the language of bureaucratic legal power to prevent the practice of free invention and free trade.

I believe that if tomorrow we adopt Mr Rocard’s amendments and the amendments that I myself have tabled, together with another 50 fellow Members including Emma Bonino, we will have a strategy and a winning opportunity. Failing that, I agree with Mr Duff, when he states that the conciliation procedure will no longer only have to reckon with the failure of Spain, Austria, Belgium and Italy to vote in favour of the directive, as in May 2004. I am, in fact, sure that we will succeed in shifting the positions of the Commission and the Council in the direction of liberalism and fairness.

  Joachim Wuermeling (PPE-DE). – (DE) Mr President, Commissioner, ladies and gentlemen, the value of innovations and the importance of the knowledge-based society have often been affirmed in this Chamber. We have been told that the intellect will come up trumps for us, that it is the trump card that Europe can play in an increasingly global economy.

Every bit as important, though, as the development of this intellect is, of course, the prevention of the theft of our ideas by others. Imagine an inventor investing, over two years, millions of euros in an invention, only for someone, three months later, to produce a copy of the invention, put it on the market and rob the inventor of the rewards of his labour. Patents protect the weak; they protect inventors against those who wield market power. Patents decide in the intellect’s favour when it contends with the power of the market, and they do without reference to the size of the business concerned.

I am far from satisfied with the way this debate has gone over recent weeks. We have ended up with an over-heated atmosphere, with an unparalleled lobbyists’ feud, and we have to admit, if we are honest, that what we in essence have to do, even though we have got as far as second reading, is to take decisions about a multiplicity of wordings, and that we are, at this stage, able only to a limited extent to gauge the likely ramifications of the many positions that have been taken up. The Committee on Legal Affairs has made forty amendments to less than ten articles. We have dozens more amendments to consider, and have scarcely any idea what their effects will be.

It has slowly dawned on me that the time is not yet ripe for a decision on this dossier, and we really should consider the possibility of rejecting the Common Position and thereby bringing the legislative process to a temporary halt. If it were possible to do that, that might be the most responsible decision we could take at this stage.

  Edit Herczog (PSE). – (HU) I have been following the debate on the draft CII directive with great interest, for one thing because of its importance (I am convinced that this is one of the most important drafts before this House), but also because I have never in all my career as a member of a national parliament or the European Parliament seen a piece of draft legislation that has been so misunderstood or misinterpreted by so many people. We have heard so many things already in connection with this directive – about Microsoft, about Linux, about the interests of multinational companies and small and medium enterprises, legal software, open source code and copyright – that we have lost sight of what is really important, of what this is all about. The important thing is Lisbon. The important thing is the knowledge-based economy and society. The important thing is that we need to be able to protect the knowledge we create. And the primary market means of protecting knowledge is the patent.

It is a discredit to Europe that the common European patent was not able to come into being, despite the fact that it is indispensable in order for knowledge and innovation to result in investment and profits. We now have an opportunity to make progress in the field of patent legislation, and to do something to ensure that protection of knowledge is reinterpreted to meet the demands of the 21st century. It would be naïve to think that this directive is a completely new concept offering something in qualitative terms that previous legislation did not. It does not represent something new and revolutionary; it represents acknowledgement of the simple fact that this modern world of ours is based on digital information and high-tech solutions, and that these are such an integral part of our everyday lives that it is impossible to conceive of development and technology without them. We need this directive. Mr Rocard has done an important job in attempting to reformulate the framework of the directive, and he deserves credit for it. He is not to blame for the fact that it did not succeed; this is probably as far as it was possible to go.

It is very important, however, that the software patent directive should come into being in the form proposed by the Commission – or with a few amendments. Without this directive, Europe will end up at a competitive disadvantage compared to all those regions that are not afraid to adapt their own systems to the requirements of the modern age. There are also other solutions for protecting innovation. But patents are the solution that establishes a connection between an invention and its market utilisation, and elevates knowledge to an economic factor. Let us not allow this solution to slip away, because only a strong European economy is capable of upholding the European values that every one of us in this House represents.

  Patrizia Toia (ALDE). – (IT) Mr President, ladies and gentlemen, two worlds are at this present moment calling on the European institutions to be able to outline a more open and more flexible strategy on such an important issue for the development not only of the economy, but also of society. They are therefore calling on us to amend the common position in terms of greater openness and flexibility.

They are two important worlds for Europe and for its future, that is to say, the world of small and medium-sized enterprises and the world of young people. Many Members have already spoken about small and medium-sized enterprises and I agree with the demand for greater flexibility, in order to avoid tightening up the directive on patenting. That could amount to an obstacle to the activities of small and medium-sized enterprises, becoming an anti-competitive threat to their development.

I should like to highlight the expectations of young people. I believe that on very few other subjects discussed in this House has there been such strong mobilisation of young people, of movements and of associations using software not only to communicate and to learn, but also as an occupation, as independent work, and for a thousand uses midway between the voluntary sector and the new professions, which are independently managed and are also highly important to the development of a society with a more open economic system that is more closely linked to the ability of young people to organise themselves.

I believe that we have said many times, for the most part rhetorically, that Europe is in tune with young people. Today we have the opportunity – and I hope that Parliament does not waste it – to genuinely be in tune with these demands made of us by young people and with the numerous movements that have expressed themselves, and I believe that Parliament must not let them down.

With that in mind, I will support the amendments tabled by Mr Rocard and Mr Duff and by other Members, with a view to improving the certainty and clarity of Europe’s common position. I believe that we need to be consistent on two points. Firstly, if we maintain that software cannot be patented, we must be careful not to extend the scope, because by doing so we would risk contradicting ourselves. Secondly, it is important to guarantee patent protection, but we must not let that lead to inflexibility and a concentration in the hands of a few people, since that would hinder development and innovation in Europe.

  Alexander Stubb (PPE-DE). – Mr President, three years ago, if someone had asked anyone in this Chamber whether they knew what a computer-implemented invention was, most people would have said ‘not really’. You all saw the demonstrators outside today. Some of them were a little aggressive. One of them jumped right in front of our car and a computer-implemented invention called ABS brakes probably saved his life.

This has been an ongoing story. There have been many very interesting turns in the plot. First of all, there is a dramatic first reading in the European Parliament. Secondly, our position is totally rejected in the Council. Thirdly, the Commission refuses to go back to the first reading. Fourthly, we have a dubious common position from the Council and now, fifthly, we stand at the end of the second reading. I am afraid this piece of legislation is going to be rejected tomorrow, as Mr Wuermeling said.

I do not know whether that is good or bad, but I know two things and I have two messages. One message is to the ‘David’ group, in other words the Open Source and SMEs. This would not have been such a bad thing after all, had we worked it through. It would not have prevented the Open Source from going on. As a Finn, I can say it would not have prevented Linux being invented and developed. To Goliath, or the bigger companies, I say ‘get your act together’. Your lobbying was miserably bad. The Open Source folk beat you hands down, by 100 to zero.

The question then is what does this mean institutionally? Institutionally, I have a message for the Commission and Council. The European Parliament is a co-legislator. You should take it seriously. When you see this proposal being rejected tomorrow morning, you should go back to the drawing board and come up with a new piece of legislation. Europe needs some form of patentability on computer-implemented inventions, but tomorrow we are not going to get it.

  Lasse Lehtinen (PSE). – (FI) Mr President, the fierce debate on this directive shows that democracy works. Just yesterday on the train to Strasbourg petitions were being pushed into the hands of travellers, and there has been an excessive volume of emails on this subject. Things are getting out of proportion, and that is the case here.

Not even some time in the future will they be able to patent a mere computer programme with no technical impact, and the excellent open source idea will not perish after this directive comes into force either. This I would venture to claim, coming as I do from the same country as the Linux system.

On the other hand, if this new directive should be toppled it could mean a new setback for European competitiveness. There will be still less left of the Lisbon declaration if we kill this directive. That it would set the big, bad supranationals against SMEs has been exaggerated and is an artificial argument. Many SMEs have been in contact with me from my country, Finland, and they say they will benefit from this directive. It would at the same time protect them and their innovations from the big companies. The big companies will always get by even without rules, but clear rules, on the other hand, always benefit the small ones.

I am not among those who object to patents in principle. The patent is one of the traditions of the European spirit. It is the foundation of the modern, successfully functioning market economy. It provides certainty and is, moreover, protection against the pirates. Why should we not patent computer-implemented inventions, which benefit us all in our everyday lives? At present, there is no harmonised legislation on patents in Europe. That creates an uncertain operational environment for businesses and investment. Indeed, we need good and transparent patent legislation for the sake of employment.

Hopefully, this will not turn into another example of how Europe shoots itself in the foot and weakens its competitiveness.

  Cecilia Malmström (ALDE). – (SV) Mr President, this is a very complicated issue, which is the subject of a huge amount of lobbying by various groups. I think it splendid that, for once, people are paying attention to what we are about here in Parliament, a state of affairs that is something of a luxury for us.

It is important to have an efficient European patent system. It is only right that individual inventors and companies should be able to take out patents on their inventions, including computer-implemented inventions. However, the current trend is for pure software also to be accorded patents, something that is not to be commended. We need researchers, innovators and individual program developers to be able to come up with new ideas without being in danger of infringing trivial patents and ending up involved in interminable lawsuits.

Firstly, we should reject the whole of the proposal and call upon the Commission to come back with a comprehensive proposal for a Community patent that covers all inventions. It is wrong to isolate software-related inventions as a sector in its own right.

Secondly, we must amend the common position, which is not a sound legal document. It contains far too many ambiguities. On the basis of the majority of Mr Rocard’s proposals, we can perhaps bring about a constructive compromise for the benefit of small, large and private companies.

  Tomáš Zatloukal (PPE-DE).  – (CS) Mr President, Commissioner, ladies and gentlemen, there are few directives that have provoked such heated debate. In my opinion, there can be no one here today who has not heard the impassioned arguments of both advocates and opponents of this directive. The directive on the patentability of computer-implemented inventions goes a long way towards defining the rules of play in the fastest developing sectors of the European economy, but a fervent debate has erupted over the ambiguous interpretation of the term ‘program as such’, which precludes exceptions from patentability.

I am in favour of consistent protection for software in the form of protection for the creative solution inherent in a whole program or part of a program, but I am opposed to patents being granted for individual ideas. Instead, patentable inventions must be solutions that combine an idea with its technical execution, for example car safety systems. Protection for individual formulae, commands or instructions would quite clearly be a step in the wrong direction. I am not opposed to patents in general, but I cannot consent to the adoption of this directive in the version proposed by the Council, which in my opinion admits several interpretations.

It is for this reason that I will only lend my backing to a version of the text that eliminates the possibility of alternative interpretations and that makes the text more precise. The set of amendments tabled by my group represents an attempt to rectify the problems I have just mentioned. I feel obliged to say that for my part, I regard the position adopted by the Council as most regrettable, since it has ignored the request made by me and many of my colleagues – and backed by Parliament’s Committee on Legal Affairs – to resubmit the directive for first reading. I believe that the Council would do better to listen to our comments, since this would encourage mutual respect between Parliament and the Council, at the same time as boosting cooperation between these two key institutions.

I should like to finish by thanking the rapporteur, Mr Rocard, and, in particular, our group’s shadow rapporteur, Mrs Kauppi, for their excellent work.

  John Attard-Montalto (PSE). – Mr President, the debate on computer-implemented innovations has been an interesting, passionate debate, but unfortunately most of the contributors have taken either a black or a white position. Everybody realises that this is an extremely complex issue. Referring to it in biblical terms does not help because it continues to put the various arguments into compartments. On the one hand, we have heard, with regard to this directive, that if we do not come down on the side of patents in general, we will stifle innovation and make Europe less competitive. Therefore, we will be going against what we have been trying to achieve through the Lisbon Agenda.

On the other hand, we have heard that if there is regulation of patents, this will add to bureaucracy and affect the consumer. According to one speaker, that will be a threat to democracy. I personally believe that we have to view the whole issue globally.

First of all, it is pointless for us to concentrate in Europe on this particular matter without taking into consideration the entire matter of patents.

Secondly, as regards Europe’s position in a globalised world, it is pointless for us to legislate whilst not being part of an international legislative structure which encourages other continents and developing or developed countries to participate on an international plane.

  Simon Coveney (PPE-DE). – Mr President, this is a complex and technical issue and I wish to thank the rapporteur and, in particular, the shadow rapporteur from my Group for her work on it. Anyone who has been subject to the lobbying from both sides in this debate will have heard convincing arguments for and against the common position proposed.

I have a number of points to make in the brief time available. Firstly, it should be stressed that the Patents Directive is not proposing the introduction of a new patents system into the EU, but instead harmonising and bringing consistency to patent offices throughout different Member States. Whatever your position on patents, you must agree that the current situation, in which 25 national patent offices have no consistent approach, does not contribute to an integrated and functioning common market moving forward.

However, it is true that in recent years the software and IT industries in the EU have been thriving under the current position. So why do we need a common approach? SMEs in particular seem to be split on this issue. Some people have decided to create the impression that this is an issue pitching the large multinationals against small SMEs. This is not the case from my experience. SMEs very much fall on both sides of the argument, some wanting to protect their ideas and inventions and others fearing a patents minefield with the proposed common position. Nobody in this House wants to vote for a situation that will in any way harm the future thriving of SMEs.

I want to focus briefly on two key issues of this directive: firstly, the definition of what we propose to allow patents on. We are not proposing the patenting of software as in the US. That should be stressed. If amendments need to adopted to clarify that point, then so be it, although the current wording is not bad. Copyright is there to protect software.

The second key question is the issue of interoperability, and the McCarthy amendments in this area are worth supporting. We must ensure that the equipment or networks required by multiple users to allow innovation are not withheld from the market. In particular, this is the case for Open Source and the Open Source movement that has been so successful in recent years.

In conclusion, people are beginning to take a very pessimistic approach at this stage and, on balance, the overall proposal is likely to be rejected tomorrow. That will spell a very serious failure of the institutions to find common ground and agreement on what is a very important area for the European economy generally.

  Barbara Kudrycka (PPE-DE). – (PL) Mr President, the legal status of computer programs has been clearly defined for a long time. Software is protected by copyright, and the European Patent Convention precludes the patenting of computer programs. Both legal academics and IT specialists are opposed to there being any change in this situation. The only purpose of the Council directive is to sanction the practices of the European Patent Office, and these practices are both misguided and dangerous.

Speaking on behalf of Professor Buzek and on my own behalf, I would therefore call on the House either to vote in favour of all of the 21 amendments in this package, which restore the meaning the directive had after first reading, or to reject the directive altogether. As noted by the German Parliament in its resolution of 17 February 2005, patent inflation brings with it the risk of a swing in public opinion regarding the effectiveness of a patent system as a tool for innovation and progress. Given this context, it is therefore Parliament’s responsibility to put on the brakes.

There is no need for the scope of patent law to be extended to cover computer programs. The main argument in favour of patent law was the desire to protect investments. Tangible innovations require lengthy testing, followed by capital investment, before any profit is derived from them. Investment in IT assets is usually small, however, if at all noticeable. There is therefore no need for them to be granted additional legal protection.

There is absolutely no truth in the claim that software patents, as interpreted by the European Patent Office, represent an opportunity. Patents also involve risks, and must therefore be used with care. Many myths and half-truths are told about patents, and I shall cite a few examples. It is a myth that the economy always benefits when patent rights are granted. Officials often measure economic innovation by the number of patents, but these can harm investment by limiting competition. There are a large number of leading IT companies that have never applied for patents, and virtually no IT specialists are interested in patent descriptions. No one has succeeded in proving that there is a direct link between patent expansion and economic growth.

Another myth is that patents for programs would help small and medium-sized enterprises, since they would allow these enterprises to gain exclusive rights to their innovative ideas. Patents can act as obstacles as well as protection, however. It is very hard for smaller firms to obtain protection, since the costs of enforcing a patent are extremely high, and sometimes even 100 times greater than the costs of gaining the patent. What is more, it is also necessary to make lengthy enquiries to ascertain whether a certain invention has already been reserved by someone else. With regard to the IT sector, where it is especially easy to make small changes, patenting programs would be the equivalent of creating a minefield.

  Tadeusz Zwiefka (PPE-DE). – (PL) Mr President, Commissioner, ladies and gentlemen, the basic duty incumbent upon EU institutions during the legislative process is to enact good, easy-to-understand and effective legislation. I do not need to remind the House of the number of times we have already heard assurances from both the President of the Commission and the representatives of the individual presidencies that this will be the case, and that Parliament is undoubtedly an important part of this process.

Today’s debate marks the end of our work on a directive that is unfortunately an example of an entirely different approach. Both the Commission and the Council believe that their drafts are the only ones that are worth anything, and they have both rejected proposals by Members of this House. I would like to believe that things will change this time, and that priority will be given to the interests of millions of EU citizens and of small and medium-sized entrepreneurs. The latter provide jobs for 90% of workers, and this is something that should doubtless not be forgotten. It is for this reason that we cannot concentrate only on the interests of large and wealthy companies.

The most serious doubts relate to the lack of any clear distinction between an invention, or in other words a patentable technical solution, and a computer program or an algorithm, be it a calculation method, a mathematical concept or a method of conducting economic activities, especially with regard to the retail trade. In view of this fact, the point of this harmonisation is highly dubious, to say the least. It is an unfortunate fact that the clause ruling out the patenting of computer programs as such will be nothing but an illusion, as is the case with the current practices of the European Patent Office. At the same time, the Commissioner informed us in his speech at the start of today's debate that this directive would not mean any changes in the EPO’s practices, which is an alarming statement.

There can be no doubt that there is an urgent need for the harmonisation of patent law, among other things with regard to inventions made using computers. An essential prerequisite for such legislation, however, is that it is good, and good for everyone.

Without the amendments of Mr Rocard and Mr Buzek, the directive will reinforce the overly liberal approach to the basic aspects defining the concept of an invention, as well as sanctioning this approach. I would therefore call on the House to vote in favour of the amendments tabled by Mr Buzek and Mr Rocard.

  Othmar Karas (PPE-DE). – (DE) Mr President, Commissioner, ladies and gentlemen, do these two hours of debate give anyone the impression that we have a Common Position that is any use, one that we can adopt? Does this debate give anyone the impression that this thorny issue has been sufficiently debated, that the time is ripe to vote on it, that we can muster the necessary qualified majority for a ‘yes’ to it or to the plethora of amendments? I do not believe that they do, and there is a reason why they do not.

The first reading was held on 24 September 2004, only to be ignored outright by the Council in its political agreement. Mrs Kauppi’s comment on the Council resolution was that ‘it seemed as if the Council wanted to disregard the will of Europe’s elected legislators’. The Council is itself unsure. On 21 December, at Poland’s request, the vote was dropped from the agenda. The German, Spanish and Dutch parliaments have expressed their opposition to the directive as proposed. Votes have been deferred for longer and longer periods of time.

The European Parliament called on the Commission to produce a new proposal for first reading. The Committee on Legal Affairs, the Conference of Presidents, and the plenary itself adopted resolutions to this effect.

What was the Council’s response? It ordered that there be no debate, declaring that it was of the first importance that there be none. Controversial though it was, and even though the Treaty of Nice was in force, the political agreement was simply adopted. The consequence of that is a lack of satisfaction and 178 amendments on the table of this House.

This Common Position contains things that I could enumerate point by point, and which are mentioned in the amendments, and they lead me to take the view that it does not make for legal certainty, fails to foster innovation, and frightens small businesses. We would therefore do well, tomorrow, to reject the Common Position and put all our efforts into harmonising European patent law, rather than adopting, and making do with, regulations that are controversial within the industry in question.

  Romana Jordan Cizelj (PPE-DE). – (SL) A year has passed since I became a Member of the European Parliament. The subject of the patentability of software inventions is one of the most important subjects we have discussed during that period.

A huge number of people have been involved in the discussion about this directive in my own country of Slovenia, as well as in other European countries. In this respect the proposed directive has already yielded positive results, as large numbers of citizens have become directly engaged in the democratic process. They have realised that the European institutions are not as remote as some of their activities might suggest. However, here in Parliament it is not the citizens who make decisions, but we parliamentarians who decide for them and make decisions in their name.

What do I have in mind when I decide how to vote on the directive? The fact that here in Europe we have to follow the goals of the Lisbon Strategy if we want to respond appropriately to the challenges of globalisation. We must exploit our competitive advantage over other areas of the globe and base our development on knowledge and research and the implementation thereof. We will be able to encourage people to engage in these activities if, amongst other things, we ensure that intellectual property is properly protected. Therefore, we must have the courage to provide a proper, uniform European legal system that will reward innovative work.

I firmly believe that now is the time to adopt the proposed directive. In order to remove any anxiety about the patenting of programmes as such, it is right and proper that it is clearly stated in the directive that they should always remain outside patent protection and in the domain of copyright.

I believe the directive should contain clear definitions of the basic concepts. Because of the important role of small and medium enterprises in the European Union, it is equally important that we take full account of the influence of the directive on their activities.

  Malcolm Harbour (PPE-DE). – Mr President, towards the end of what has been an interesting debate, it is time to get back to what we are talking about, the core of the matter. This is not an extension of existing patent law; it is not actually taking us into any new fields. The whole objective of this is to clarify the existing situation because the current patent law is being applied in an inconsistent way. In many cases companies who want patents do not know where they stand. They may get a patent from one country but not from another.

At the same time, I think we are all agreed that we do not want to see the sort of patent regime that appears to be running very fast in the United States and other countries, where patents for what we might call relatively trivial inventions covering business methods or simple software which ought to be covered by copyright will not be covered.

However, the main issue is: does the proposal in front of us actually achieve that? Put yourself in the position of a patent inspector, where you are having to make a judgement about whether to offer patents. I suggest to you that this wording and much of the wording here is not only complex, difficult and opaque but actually goes in entirely the wrong direction.

Part of the problem – and I sense it in a lot of the discussions here – is that many colleagues are not accepting the fact that in almost every field of technological invention, there is some form of digital technology. The notion of a computer aiding or controlling things is actually rather an outdated one. You carry in your mobile phone more computing power than a large computer of ten years ago. That is programmed by instructions and it is perfectly sensible for companies that have technical innovations encompassing that software to be able to protect it.

I suggest to you that this is going in the wrong direction: it is not helping small businesses, it is not helping large businesses, it is not helping open source movement. We have to decide whether we have not failed completely in this and whether it is not time to start again.

  Zuzana Roithová (PPE-DE).  – (CS) Ladies and gentlemen, the European Patent Convention protects the public interest by prohibiting the patenting of anything that is not a technical solution, and in particular of scientific theories, aesthetic creations, mathematical methods, plans or rules for performing mental acts and computer programs. Even though copyright makes it possible to prevent abuse in this field, around 20 companies have submitted over 20 000 applications for patents on computer programs. The latter include not only control programs for appliances ranging from washing machines to unique medical devices, but also pure software and business methods, such as the use of shopping baskets for Internet purchases. It is an unfortunate fact that national patent offices and courts reach different decisions on many cases, and this is why clear rules are needed at European level.

I regret to say that we are still waiting for an up-to-date and general directive on the European patent. This fact makes today’s debate rather more complicated, as it concerns a specific directive that does not deal with concepts, but goes beyond the scope of the Trade-Related Intellectual Property Services (TRIPS) Agreement. The fact that large companies are in favour of the directive is doubtless an important factor, but a number of parties, including legal and computer professionals, the academic community, small companies and the Czech Senate, for example, have highlighted the directive’s ambiguity. Such ambiguity carries with it the risk that the directive’s provisions will be open to broad interpretations, which would have serious consequences for small and medium-sized entrepreneurs and consumers. What is more, the Council has regrettably failed to submit an assessment of the directive’s impact on small and medium-sized enterprises and on the new Member States, as requested by Parliament.

An ad-hoc, cross-party coalition has been formed in this House. Our aim is to reach a compromise agreement on joint amendments, and to allow the patenting of firmware, or in other words control programs for technical appliances, only in cases where it exists as part of an overall invention. We also want to increase interoperability for consumers, and to prevent the granting of patents for trivial ideas; after all, one patent costs EUR 30 000, and the approval process takes an average of four years. Since small and medium-sized enterprises act as the driving force behind the IT sector, accounting for 70% of turnover and 80% of jobs, both these factors act as obstacles to dynamic growth in this sector. We are therefore proposing that a clearer distinction be made between patents for machines and those for pure software.

In conclusion, I should like politely to ask the Commission to state clearly what progress has been made on preparations for an up-to-date European patent. Unless the directive is successfully amended, my group as a whole would rather vote against it.

  Carl Schlyter (Verts/ALE). – (SV) Mr President, today we can choose whether we want old-fashioned patent legislation with an old-fashioned view of large companies and of development or modern, small-scale and creative development involving modern legislation.

Everyone says that they do not want to see software patents. We have seen how disastrous it was when the United States introduced them. The only way of demonstrating our wishes today is to vote in favour of the 21 compromise amendments signed by myself and many others. We should then obtain intelligent, balanced legislation in which creativity and sound patent legislation have their place.

A vote against would show that we were completely in the hands of the big companies. It would lead to legislation whereby programs used to run equipment became patentable. It would be like giving patent protection to equipment manuals. Such a world would emphatically not be modern.

  Joaquín Almunia, Member of the Commission. Mr President, those of you who have been directly involved in working on this proposal know that we are dealing with a very complex area. The directive cannot be turned on its head. What we need is a proper balance between stimulating innovation and making sure competition is not stifled.

As Commissioner McCreevy said in his statement of March 2005, the ball is in your court. Whatever you decide, the Commission will take account of it and respect it. Should you decide to reject the common position, the Commission will not submit a new proposal. You should also remember that rejection would stand in the way of many European undertakings and go against our common Lisbon objectives of increasing Europe’s competitiveness.

In the debate, various Members have raised the question of interoperability. On that issue the Commission maintains a certain degree of flexibility. Compulsory licensing schemes already exist in Member States’ legislation. It is a suitable solution, provided that non-discrimination between different software development models, ‘proprietary’ or ‘open source’, is ensured. Companies should be motivated to licence voluntarily. However, if rightholders abuse their rights by imposing unreasonable conditions, authorities should step in to ensure fair terms are applied.

A limited interoperability exception, geared towards the promotion of open standards, could also constitute a sound approach, provided that international obligations are respected.

Various Members also raised the question of copyright. Let me clarify that by pointing out that copyright is a separate and different right from patents. Copyright and patents protect different aspects of something which is new and original. So patents do not affect the existence of copyright.

Copyright protects the expression of an idea, but it does not protect any invention and copyright protection does not prevent someone taking an invention and expressing it in a different way.

With regard to small and medium-sized businesses and their access to the patent system, I should draw attention to two aspects. First, Members will be aware of the Commission’s proposals for a Community patent which would reduce the costs of patent protection throughout the European Union. Secondly, we have had a feasibility study done on the question of insurance against the costs of patent litigation. This study is now in a second phase and consultants have been asked to come up with concrete proposals.

In view of the large number of amendments tabled, we are providing the secretariat with an overview of the Commission’s position on them in writing for inclusion in the verbatim report of this debate⁽¹⁾.

Finally, I hope that the vote will result in a positive outcome. However, should further work be needed to reach agreement with the Council, the Commission stands ready to assist both co-legislators towards reaching a constructive outcome.

  President . The debate is closed.

The vote will take place on Wednesday at 12 noon.

Written statement (Rule 142)

  Alyn Smith (Verts/ALE). – Mr President having listened carefully to the various arguments presented during this morning's debate, I would strongly urge members of this House to give their support to the 21 compromise amendments which would stop the introduction of software patents in tomorrow's vote. If these amendments are not accepted then I and many others will vote against this resolution.

This draft legislation works against the interests of European Small and Medium-Sized Enterprises (SMEs) operating in the software industry. If this legislation is adopted by the Parliament tomorrow it will stifle innovation and stifle vital European SMEs. The Parliament must vote against this legislation. We cannot afford to stifle vital European SMEs. SMEs are the lifeblood of job creation in Europe. Copyright does everything that it should do. Software patents are not the way to go.

Annex – Position of the Commission

Rocard report (A6-0207/2005)

The Commission can accept Amendments 1, 6, 7, 8, 9, 10, 11, 12, 13,

provided the change is consistently applied: 14, 40, 72, 93, 114, 135, 158

15, 18, 21, 26-37, 43, 47, 58, 59, 60, 61, 63, 66, 75, 79, 90, 91, 92, 96, 100, 111, 112, 113, 117, 121, 132, 133, 134, 138, 142, 153, 154, 155, 161, 165, 176, 177, 178.

The Commission can accept in the context of a satisfactory and balanced global package Amendments 5, 25, 48, 50, 67, 68, 80, 82, 101, 103, 122, 124, 143, 145, 166, 168.

The Commission can accept subject to redrafting or recasting Amendments 4, 16, 17, 19, 22, 23 (repositioned in the text), 53, 85, 106, 127, 148, 171.

The Commission cannot accept Amendments 2, 3, 20, 24, 38, 39, 41, 42, 44, 45, 46, 49, 51, 52, 54, 55, 56, 57, 62, 64, 65, 69, 70, 71, 73, 74, 76, 77, 78, 81, 83, 84, 86, 87, 88, 89, 94, 95, 97, 98, 99, 102, 104, 105, 107, 108, 109, 110, 115, 116, 118, 119, 120, 123, 125, 126, 128, 129, 130, 131, 136, 137, 139, 140, 141, 144, 146, 147, 149, 150, 151, 152, 156, 157, 159, 160, 162, 163, 164, 167, 169, 170, 172, 173, 174, 175.

IN THE CHAIR: MRS ROTH-BEHRENDT
Vice-President

(1) Commission’s position on amendments by Parliament: see Annex.