Strasbourg, 23/09/2003 (Agence Europe) - On Wednesday the European Parliament will give its decision on the draft directive on the software patentability directive (Arlene McCarthy, British Labour - EUROPE 20 June p 14).
The debate on Tuesday in Strasbourg demonstrated that the vote would be close with a significant number of MEPs believing that the draft goes against the interests of SMEs and could lead to the domination of software by the multinationals. "Not all", exclaimed Frits Bolkestein: the Commission wants above all to harmonise and clarify, without following the road of the USA where it is possible to have patents for purely commercial "methods".
The Commissioner indicated that he might agree to amendments from the legal and internal market committee, which is close to the position he supports. But this would not be the case for other amendments, which sometime request the complete removal of the draft directive. Without a Community draft, Frits Bolkestein indicated that the European Patent Office (EPO) would continue to grant de facto software patents without any Community framework to them given the current legal uncertainty. Mr Bolkestein warned that without a directive, the way forward could be negotiated with the European Commission on patents, which would not involve the European Parliament.
According to rapporteur, Arlene McCarthy, the main objectives of the directive are to limit the patentability of "genuine" inventions, making sure that the granting of these patents did not create a situation of monopoly and that they were not reserved just for big companies. Ely Ploij-van Gorsel, rapporteur for the industry committee's recommendations said that it was essential of ensuring that there would not be "trivial patenting" like in the USA. Joachim Würmeling for the EPP-ED said that the current "drift" of the EPO was in danger of continuing if the EP voted against the directive.
While acknowledging a need to put an end to legal uncertainty, Michel Rocard, Chair of the Committee on Culture, said the technical provisions of the directive would not allow implementation of the "original good intentions". The text must be amended as intellectual creation follows rules other than those of industrial production, Manuel Medina Ortega said on behalf of the Socialist Group (British and German members of the group, however, supported the rapporteur's position).
Speaking for the Liberals, Toine Manders urged for a "grace period" that would be in the interest of the smaller entities. The latter are defended by Pernille Frahm on behalf of the United Left/Nordic Greens Left. He notes that, even all do not share the same intentions, the provisions proposed by the directive were not enthusiastically welcomed by SMEs. The Commission is threatening us, Raina Echerer deplored (on behalf of the Greens/EFA), considering that the directive opens new divisions without answering the fundamental question of protection of innovation. The Lista Bonino is against the directive, Marco Cappato announced, insisting on the need to affirm that software cannot be patented.
Gérard Caudron, French independent Socialist, would not be willing to vote on this text unless it is substantially amended. He would not be content with "superficial improvements" contained in the report, which would be tantamount to "stealing major companies of creative spirits". The same line is followed on the Spanish Socialist side: without the amendments of the culture committee, we do not want this directive, Luis Berenguer said. Rijk van Dam (Europe of Democracies and Diversities) said they are arriving like the Offenbach carabiniera once the wrong has been done: 30000 patents have already been granted by the EPO. Geneviève Fraisse (United Left) said she found it hard to understand what is happening. She fears that this directive will create the same legal uncertainty as the directive on patentability on the living.
Commissioner Bolkestein tried to be reassuring after the debates, saying that the directive will indeed protect SMEs. He pointed out that the Commission could accept a new article in the directive concerning the interoperability of systems, but according to another wording.
The Commissioner defended the text of the directive in an article in yesterday's Libération. Europe, he said, in no way plans to take on board the legislation of the United States, which allows for commercial methods that are not of a technical kind to be patented. He stressed that there was an "essential difference", namely that, in Europe, a request for a patent must contain a technical solution to meet the requirements of invention. No-one challenges the possibility of patenting inventions allowing for the function of a washing machine to be improved, so why should one deny protection of such inventions simply because they are implemented by software, he asks. Assuring that the Commission proposals are balanced, he remarked that the users of existing software and free access may continue to use them freely, independently of the future patents in this field.