Whenever you speak to someone from the European Commission about intellectual property and ask them whether the various directorate-generals that have an interest in the area get together and talk issues through, you are always told yes. I have been assured on a number of occasions that there are regular meetings between representatives of the different DGs on IP and that everyone agrees on everything IP-related that the European Commission says or does. All of which makes you wonder whether any of them really have any clue about the extraordinary mixed messages that come out of Brussels on what seems like a regular basis.

Take patents, for instance. They are, we are told by the Internal Market DG, vital for the competitive future of Europe. The Industry and Enterprise DG seems to agree. For Europe to take its rightful place at the heart of the global knowledge economy, so the message goes, we need a Community patent and one that is attractive to European SMES, all of which must be educated to use the patent system far more than they do at the moment. And alongside a Community patent we need a single European patent jurisdiction through which we can end the current patchwork of often contradictory decisions in patent cases handed down by national courts. On top of this, just three years ago the Commission was telling us that we needed a Computer Implemented Inventions directive to harmonise the treatment of software patents, again to help SMEs and to provide certainty in the software market. In short, the Commission tells us that patents are good and patents are vital to Europe’s prosperity.

But wait a minute. Move over to the Competition DG and the message changes. There patents are a problem. Patents do not create opportunities, but monopolies; they distort markets and they deny consumers the choices they deserve; their use, as well as the people who use them, has to be controlled. Hence, the Technology Transfer Block Exemption; hence the decision to tell Microsoft what they could and could not license, to whom and at what price.

And now, the DG for Informatics is getting in on the act. In the recently published European Interoperability Framework for pan-European eGovernment Services - a document that “provides a series of recommendations and defines generic standards with regard to organisational, semantic and technical aspects of interoperability, offering a comprehensive set of principles for European co-operation in eGovernment” – we are specifically told that only open source software can be used in the development of interoperability systems. Any software that may be protected by patents can only be integrated if the owners agree that the “standard is made irrevocably available on a royalty free basis”. So, a go-getting and smart European SME may well have invested significant time and money in developing world-class software. It may have followed the advice of commissioners McCreevy and Verheugen to get patent protection, but when it comes to putting that software into a potentially lucrative pan-European project, it’s no can do.

It is possible, I suppose, that this is something that has been agreed by all the DGs with an interest in patents. But if this is what has happened, the Commission needs to come out and explain exactly how it represents a coherent approach to patents and patenting. If the Commission does not, or cannot, do this, then there really can be only one conclusion. And that is that the left hand does not know what the right hand is doing; each DG looks at patents and IP in a vacuum and there really is no meaningful discussion of IP on a Commission-wide basis, and neither is there a coherent European IP strategy. If this is the case, the damage it is doing to Europe at a time when countries such as China and India, not to mention the US and Japan, are putting IP centre stage, is incalculable.

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