Frits Bolkestein and Software Patents

As far as communication is concerned, my recent experiences in the European Parliament, where I debated our proposal on the protection of computer implemented inventions, made it clear to me that our message is not coming through to everyone. I am afraid the impression is widespread that industrial property rights are there to serve the interests of industry, at the expense of citizens and consumers.

To a large extent we have ourselves to blame for this unfortunate state of affairs. Too many policy discussions in this field are conducted in the jargon of specialists and lawyers. These technical discussions have led to sound plans and proposals. But we have been less successful in making clear to the non-specialists what industrial property rights are really about. And we have had even greater difficulty in explaining that industrial property rights also benefit citizens and consumers.

For example, in the past weeks, I literally spent hours and hours trying to clear up one simple misunderstanding: our proposal on the protection of computer implemented inventions is not at all about software. I spent evenings explaining to MEPs and journalists that this proposal will not seal off the software market to initiatives and new inventions, but that it merely wants to reward those who invest in developing genuinely new products that depend on computer implemented technology. I spent days trying to persuade people, that our approach to industrial property rights in general always aims to strike a balance, between encouraging innovation via property rights on the one hand, and respecting that the prerequisite of competition on the other.

The key issue in the European Parliament and in the press was the "interoperability" of computer software. Many MEPs and even more lobbyists were very concerned that the protection we allegedly granted to software would prevent computer systems from "interoperating", "speaking to" or indeed "competing" with each other. But I am just as convinced as the European Parliament that the proposal on the protection of computer implemented inventions should respect the principle of interoperability. There should and there will be market access for all software developers. Consumers should have a choice. I am fully committed to making sure that they will not get a raw deal.

But it continues to be a difficult debate. Many people still need persuading. And that means we have to explain more clearly what our principle is, namely that we all stand to gain from well-designed legislation in this area. And what is more: we need to do this in "plain speak". The acronyms don't help.

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To conclude, this conference is named 'quo vadis?', which means: "Where do we go from here?" Let me give you an answer. We need to persuade our critics, such as the open source and anti-globalisation movements, that our ideas are right. We need to persuade them that what we want is in the end not that different from what they want. Industrial property rights are not about corporate interest. They are about an open and competitive economy that also provides incentives for research and innovation. They are about an environment in which citizens, all over the world, can benefit from new techniques and inventions, against a reasonable price. That is our basic philosophy! And I can think of no reason why we should be so modest about it.

Now I am aware that the large number of amendments to the McCarthy report have been tabled. Many of those try to re-introduce ideas and themes which were already considered and rejected by the committee during the preparation of the report. There are some interesting points, but in the main, I am afraid that the majority of those amendments will be unacceptable to the Commission. And I must confess, to being very concerned about this situation. Many of these amendments are fundamental, and there is the very real possibility of the failure of the proposal if the parliament chooses to accept them. If that were to happen, there would I fear be two consequences, neither of which I suspect has been forseen by some mebers of parliament, and neither of which I can only assume would advance the objectives which seem to lie behind a number of amendments. Firstly, in the complete absence of harmonisation at the level of the community, the European and various national patent offices would be free to continue their current practice of issuing patents for software-implemented inventions which may blur or even cross the line in undermining the exclusion from patentability of software as such under article 52 of the European Patent Convention. And the result would be not only continuing legal uncertainty and divergence for inventors; but also erode the position which I think almost everyone in this room and above all the Commission itself wants -- namely to maintain the exclusion of pure software from patentability. That we do not want. That the proposal rejects. And secondly, in the absence of harmonisation at Community level, member states would be very likely to pursue harmonisation at the European level instead. And may I explain what I mean by that remark. Unlike many fields, patents are unusual in that as a result of the existence of the European Patent Convention, and the creation of the European Patent Office, there already exists a supranational patent system, which covers the whole of the European Union, and indeed beyond, and which can act independently of the Community's legislative process. Now if we fail in our efforts to achieve a harmonisation of patent law relating to computer-implemented inventions in the European Union, we may well be confronted with a renegotiation of the European Patent Convention. And if I may be blunt, President, the process of renegotiation of the European Patent Convention would not require any contribution from this parliament. So the situation is clear: there is a single objective but a choice of means. Either we proceed using the community method, or we take a back seat and watch while member states go via the route of an intergovernmental treaty. And I think it is clear which route would give European citizens a greater say through this parliament in patent legislation in an area which is so crucial to our economy.