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European Commissioner for Internal Market and Services
European Parliament Plenary Session
the Commission is grateful for this opportunity to make a statement on the proposal on the patentability of computer-implemented inventions. I already had the opportunity to debate the proposal with the Committee on Legal Affairs on 2nd February and to discuss it with the Conference of Presidents on 3rd March. I took very careful note on both occasions of the views of the European Parliament. I noted that the Parliament considers, in general, that its views were not given sufficient weight in the first reading. From the debate in the Legal Affairs Committee, I noted that there are differing views on the substance of the proposal, in particular on its content and purpose.
The Commission gave the EP’s request of 24 February, which was submitted under Article 55 of the Parliament’s internal rules of procedure, careful consideration. But the Commission concluded that, at that stage, regrettably, it could not submit a new proposal, as the Parliament requested. Not because the Commission wished to persist stubbornly with the proposal, but because the Council was on the point of adopting a common position.
As I explained to the Conference of Presidents, the Council reached a political agreement in May 2004 in first reading. The Council has been on the verge of confirming the political agreement in the form of a common position since December 2004. The Commission had supported the political agreement of May 2004. The Commission could, therefore, not go back on its word when the Council was in the process of confirming its common position.
The Council has now made up its mind and adopted its common position. It did so yesterday at the Competitiveness Council. Jeannot Krecké, Chair of the Competitiveness Council, already explained to the Legal Affairs Committee, the reasons behind the Council’s stance. It confirmed its common position, primarily for institutional reasons. The Council wanted to avoid a precedent whereby Member States would be seen to be backing away from a deal they had signed up to in May 2004. The Council confirmed its position to show that a deal is a deal and that it was not creating a log-jam on this dossier, in an area which is key for innovation. Jeannot Krecké noted yesterday, when the Council took its decision, that some Member States had concerns on the substance of the text and that these would be addressed in the second reading.
The ball is now very clearly in the European Parliament’s court. It’s for you to decide how you want to play it. I don’t have to remind you of the Parliament’s rights: we discussed this in the Conference of Presidents. You can, of course, reject or substantially amend the proposal. If the Parliament decides to reject it, then the Commission will respect your wishes. I will not propose a new directive.
Should you decide to propose amendments, the Commission will give them due consideration. No doubt, there are improvements that can be made. You will understand of course that I cannot speak on behalf of the Council and I would urge the Parliament to engage constructively with the Council in the future on this dossier. I am ready to help in any way.
Before concluding, I would like to say a few words on the substance of the proposal since the European Parliament will now need to turn its attention to this. The Commission proposed to clarify the legal rules on patentability for software-related inventions. This does not include computer programmes or other software as such. It means inventions which make a technical contribution and which are truly novel.
Such inventions are present in a number of everyday consumer goods such as cars, mobile telephones and domestic appliances. The Commission’s intention in making its proposal was to avoid patenting of pure software and clearly differentiate the EU from the US. Nothing that is not patentable now will be made patentable by the directive.
The current rules in the European Patent Convention are out of date and leave a very wide decision-making power in the hands of patent examiners. There can be different interpretations as to whether an invention can be patented. This leads to uncertainty for businesses and small and medium-sized companies in particular are negatively affected by the lack clarity in the existing rules. I would like to remind members that in the absence of a directive, patents will continue to be granted. If patent offices decide to grant patents for pure software, then expensive procedures before the Courts will be the only option for those who wish to object.
Those of you who have been directly involved in working on this proposal know as well as I do that it is a very complex area. Any modifications will need to be carefully evaluated. The directive cannot be turned on its head. We need to maintain a proper balance between stimulating innovation and making sure competition is not stifled.
I hope I have not been too long in my intervention. The situation is in fact now very clear. The ball is in your court. I am sure you will exercise your rights and your judgement wisely. Whatever you decide, I would like to reassure you that the Commission is listening. I know a new wind is blowing on this. This is reflected in the positions expressed in the Council and the Parliament and the Commission will take account of this and respect it.