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It is no secret that Mr. Bolkestein is a staunch supporter of software patents. He is the European Commissioner reponsible for "Internal Market" affairs and therefore wields a lot of influence. Frits Bolkestein recently announced that he would be resigning from his post as Commissioner this year. A more detailed profile on him can be read on this older page.

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Bolkestein not to seek renomination

Frits Bolkestein has announced he will definitely not seek re-election to the Commission in November.

"Bolkestein, 71, has headed the EU's departments for financial services, the single market, tax and customs since 1999. He won't seek the Dutch seat on the next commission after his term ends in November, the Dutch government in The Hague and his spokesman in Brussels said".

Previously Bolkestein had said whether he stayed or not would depend on how good he thought the next Commission President was (and whether he got DG Competition ???):

Hence the great FT headline

Public Debate with Bolkestein May 18

Conference on Industrial Property Rights, Ischia, 6th October 2003, Speech of F. Bolkestein:

[[http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=SPEECH/03/446|0|RAPID&lg=EN&display=|"Quo Vadis?(Where do we go from here?) Striking the balance on industrial property rights"]] [[http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.getfile=gf&doc=SPEECH/03/446|0|RAPID&lg=EN&type=PDF|(pdf)]]

It seems he has got the message that he eventually should talk with software patent critic organisations and maybe he could understand soon that the decision by their consultation to ignore the critics was not a good decision.


cut-and-paste of intro speech:

Verbatim report of proceedings


Patentability of computer-implemented inventions

Bolkestein, Commission . Mr President, on behalf of the Commission, I wish to begin by thanking Mrs McCarthy, the rapporteur on this complex and technical but important matter, for her excellent work on this report. I should also like to thank the rapporteurs of the Committee on Culture, Youth, Education, the Media and Sport and the Committee on Industry, External Trade, Research and Energy, who have also made a major contribution to Parliament's work on this issue.

Computers are becoming ever more ubiquitous in our everyday lives and, quite apart from the box that sits in almost all our offices and quite a few of our bedrooms, microchips are now commonplace in everyday gadgets, such as electric razors, cars and microwave ovens. The question of how to define the patentability of computer-implemented inventions is thus becoming steadily more important, especially as such inventions are estimated to cover 15% of new patent applications. Indeed, the potential patentability of computer-implemented inventions is already accepted in current European Patent Office practice. The proposed directive does not aim to abolish this practice or extend it to cover the patenting of pure computer programs, as many opponents of the directive have claimed. The directive is not intended to cover the patenting of pure computer programs. Indeed, many have - falsely - claimed that the directive introduces for the first time the notion of patentability of software inventions in the European Union's patent practice. That is not the case.

I am, therefore, all the more pleased that the rapporteur has been able to steer past these misconceptions and produce a highly constructive report which seeks to build on the objective of the Commission set out in its original proposal, namely to clarify the scope of patentability of inventions, which incorporates software, and to harmonise across the European Union, on the basis of existing practice, the proposal which seeks to achieve harmonisation and clarification. However, nothing will become patentable which is not already patentable.

It is in this spirit that the Commission would welcome the amendments to the text proposed in the report by Mrs McCarthy as a further step to clarifying that objective.

Opponents of the directive have mounted a very vocal and, at times, even personal campaign based on half-truths and misconceptions which play on legitimate concerns over competitiveness, especially for smaller firms. But the fact is that the proposal does not introduce software patents and will not have all the terrible effects that the prophets of doom would have you believe. It is a prudent, cautious measure which will clarify and, if anything, tighten the rules which already exist.

I am aware that a large number of amendments to the McCarthy report have been tabled, many of which seek to reintroduce ideas and themes 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.

I am very concerned about this situation: many of these amendments are fundamental. There is a very real prospect that the proposal will fail if Parliament chooses to accept them. If that were to happen, I fear two possible consequences, neither of which, I suspect, has been foreseen by some Members of Parliament and neither of which would advance the objectives which seem to lie behind a number of the new amendments.

Firstly, in the complete absence of harmonisation at Community level, the European Patent Office and the 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. The result would be not only continued legal uncertainty and divergence for inventors, but also a roll-back of the position adopted by almost everyone in this Chamber and, above all, the Commission itself, namely to maintain the exclusion of pure software from patentability. We do not want that. The proposal rejects that.

Secondly, in the absence of harmonisation at Community level, Member States are very likely to pursue harmonisation at European level instead.

Let me explain what I mean by that remark. Unlike many other fields, that of patents is unusual in that, as a result of the existence of the European Patent Convention and the creation of the European Patent Office, there is already a supranational patent system in place which covers the whole of the European Union and indeed beyond. This system can be operated independently of the Community's legislative process.

If we fail in our efforts to achieve 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. The process of renegotiating the European Patent Convention would not require any contribution from this Parliament.

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 proceed by means of an intergovernmental treaty. It is clear that proceeding via this Parliament would give European citizens a greater say in patent legislation, an area which is so crucial to our economy.

cut-and-paste of closing speech:

Verbatim report of proceedings SITTING OF TUESDAY, 23 SEPTEMBER 2003 Patentability of computer-implemented inventions

Bolkestein, Commission . 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 23. 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.

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 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 76 might form the basis of a compromise because it evokes the TRIPs Agreement.

The second point worth special mention is Amendment 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 per se 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.

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.

As Bolkestein tried to threat the Parliament with EPC renegotiation using national agreements:

The end of an Cancun (where the US lost like Bolkestein lost) article reads very similar:

"US trade representative Robert Zoellick threatened that if the US did not get what it wanted at the WTO, it would concentrate on bilateral and regional agreements like the Free Trade Area of the Americas (FTAA)."

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