An Open Letter to the
European Parliament Concerning the Proposed Directive
on the Patentability of Computer-Implemented Inventions
The
undersigned economists have grave concerns about the proposed Directive on the Patentability of
Computer-Implemented Inventions that has emerged from the JURI committee of
the European Parliament and that has been tabled for vote on 1 September 2003.
While
clothed as an administrative clarification, the proposed Directive will
provide opportunities and incentives for the construction of extensive
portfolios of software patents. The
exploitation of these portfolios will have serious detrimental effects on
European innovation, growth, and competitiveness.
Unlike
most complex technologies, the opportunity to develop software is open to small
companies, and even to individuals. Software patents damage innovation by
raising costs and uncertainties in assembling the many components needed for
complex computer programs and constraining the speed and effectiveness of
innovation. These risks and liabilities
are particularly burdensome for small and medium sized enterprises, which play
a central role in software innovation in Europe as well as North America. Moreover, within the ICT sector, expansion
of patent protection has been found to lead to an increase in the strategic use
of patents, but not to a demonstrable increase in innovation.
Copyright
and other rules of competition permit small and medium sized software
enterprises to grow despite the overwhelming resource advantages of large
companies. As a recent report from the
National Academy of Sciences in the US concluded: “[D]eveloping and deploying
software and systems may cease to be a cottage industry because of the need for
access to cross-licensing agreements and the legal protection of large
corporations.” While some small and
medium-sized firms will be able to prosper in this new environment, many will
not. In particular, validating loosened
standards on patentability will cloud the prospects of Europe’s ascendant free
and open source software industry while preserving the dominance of present
market leaders.
We
are concerned that the analysis made available to Parliament by the Commission
and the JURI committee fails to acknowledge the problems of strategic patenting
that have been the growing focus of attention and research in the U.S., as well
as the unique characteristics of software development and use.[1] We urge the members of the European
Parliament to reject the proposed Directive in its present form and to
request that the Commission develop an economic analysis that properly
considers the potential consequences of software patenting for European
software developers and users.
Birgitte
Andersen, Birkbeck, University of London
Paul
A. David, Oxford Internet Institute and Stanford University
Lee
N. Davis, Copenhagen Business School
Giovanni Dosi, Scuola
Sant'anna Superiore
David Encaoua, Université Paris I
Dominique
Foray, IMRI Université Dauphine
Alfonso Gambardella, Scuola
Sant'anna Superiore
Aldo
Geuna, SPRU, University of Sussex
Bronwyn
H. Hall, University of California, Berkeley and Scuola Sant'anna Superiore
Dietmar Harhoff,
Ludwig-Maxmiliens Universitaet
Bengt-Åke Lundvall, Aalborge
University
Peter Holmes, SEI, University
of Sussex
Luc Soete, MERIT, University
of Maastricht
W. Edward Steinmueller, SPRU,
University of Sussex
25 August 2003
[1] For a detailed critique of the rapporteur’s
explanatory statement see http://www.researchineurope.org/policy/critique.htm