Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-09-23-Speech-2-056"
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"en.20030923.2.2-056"2
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". Mr President, since there are many amendments, I do not propose to go through them all one by one, indicating the Commission's response. With your permission I should like to provide you with a list of the amendments by number, showing which of them the Commission can accept, which we cannot accept and which we could accept with suitable rewording. On this understanding I should like to confine myself to some remarks of a general nature and hope to end with some more specific remarks to address questions raised by Members of Parliament.
That said, I shall make a few brief remarks. Firstly to Mr Rocard, who said that the proposal does not guarantee that there will be no software patenting as such. The proposal lays down a specific hurdle that must be cleared before any invention can be patented. The invention must make a non-obvious technical contribution: this guarantees that non-technical software will never be patented but genuine technical inventions will get the protection they deserve. I also say this to Mr MacCormick who asked me to ensure the directive is watertight against leakage. This requirement of the technical contribution does so. I hope this will satisfy Mr De Clercq.
My second specific remark is addressed to Mrs Echerer, who said that if a small part of a problem is patentable then the whole problem is patentable. Patents are about solutions to technical problems and a patent has to cover the whole, not just a small part, of the solution to a problem. It is only infringed if the whole solution is used. It does not, therefore, monopolise every separate component part which contributes to the solution.
On the matter of SMEs, which many Members mentioned: in so far as SMEs are users of patents, I wish to stress that nothing becomes patentable that is not patentable now. As SMEs may be inventors of software, they also need to be protected and would get the protection they deserve under the directive. I say this to Mr Oreja and Mrs Thyssen in particular.
Let me echo the words of Mr Wuermeling who said: 'whoever opposes this directive must know that the present practice will be continued.' Therefore, if you do not want the present practice to continue, please vote in favour of this directive.
Lastly, the Commission would once again like to thank Mrs McCarthy for her report . Although it is not identical to the Commission's original proposal, –it could, subject to the comments I have made, achieve the balance that we require. I thank all Members for their attention and you, in particular, Mr President.
Turning first to the McCarthy Report itself, I have already indicated that we are favourably disposed to most of the amendments that have been made in it. However, I should like to speak about two specific amendments that raise important issues.
The first is Amendment No 20 - the insertion of a new Article 6a on interoperability. At first sight this looks reasonable. On closer examination, however, it is plain, at least to the Commission, that the exception as proposed might empty some patents of their value. In fact it could potentially render them totally worthless. I believe this would be disproportionate and in addition may be against our international obligations under the TRIPs Agreement. Nevertheless we could look favourably on a provision that dealt with interoperability, provided that these important issues are dealt with. The wording used at the end of Amendment No 76 might form the basis of a compromise because it evokes the TRIPs Agreement.
The second point worth special mention is Amendment No 18 - the addition of a new paragraph to Article 5, dealing with computer program claims. That is something that the Commission did not put into its original proposal. This was not an oversight but something that we considered long and hard. We were concerned that allowing computer product claims was a step on a slippery slope to allowing computer programs on their own to be patentable, something that is clearly contrary to the European Patent Convention and to the views of the vast majority of the Members who spoke this morning.
After reflection, however - and let me not disguise that a lot of this reflection was prompted by the work of this Parliament - we consider that such a clause might work within the Commission's overall objectives, if – and only if – we can word the Article in a very careful and cautious way.
Unfortunately, I cannot be as positive about most of the amendments which have been tabled to the McCarthy Report and which have to be considered here today. The problem with many such measures is that even if they were considered to be worth looking at, they all have one thing in common: they introduce a special regime for computer-related inventions. In patent law and practice it is a fundamental principle that inventions ought to be assessed in a neutral manner with regard to the type of technology on which they rely. The patent examiner will of course examine each individual invention for its inventive element, but he or she has no preconceptions that an invention that uses a certain type of technology is
innovative or not.
This principle is in fact enshrined in international law, in particular the TRIPs agreement, where it is stated that patents shall be available in all fields of technology and patent rights enjoyable without discrimination on that basis.
There are some amendments which pose less of a problem for the Commission and we might therefore accept them. I am thinking especially of certain of the amendments directed at the report which the Commission must prepare on the operation of this directive, although I should emphasise that the Commission is not prepared to accept that, in this respect, 'Anything Goes'.
Anything which imposes unreasonable demands, given the limited resources at the Commission's disposal, could not meet with our approval. The need to remain within the scope of the directive should also be borne in mind. Some of the amendments proposed are too broad in their effects."@en1
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