Analysis


Introduction

This document provides background information and argumentation. If you are not interested in reading this, please skip to Chapter 3, where our point-by-point analysis of the questionnaire begins.


Validity of The Consultation Procedure

A priority for the EU?

The questionnaire describes the Community Patent as a "priority" for the EU. It discusses a subject that is at the forefront of international debate about how far intellectual property rights are actually needed in order to stimulate science, the arts, and the economy.

However, for such an important proposal as the Community Patent, the questionnaire, and the process behind it, has serious failings that we must highlight.

We will examine the major problems with the consultation procedure.

Inaccessibility to the General Public

The questionnaire, and supporting documentation, are not accessible to a general public, not even to the proported audience of businesses that are affected by patents:

  1. The questionnaire is provided in three languages only, instead of the official languages of the twenty-five current member states plus Bulgarian and Romanian.
  2. There is no supporting documentation except the texts of draft treaties and previous resolution, material that is unreadable by a general public.
  3. The supporting documentation (the official documents), are not provided in all the official languages of the twenty-five current member states plus Bulgaria and Romania.

This inaccessibility creates real barriers to businesses operating outside the zones of the supported languages and that should be replying to the questionnaire.

We would have liked to see:

  1. A translation of the questionnaire into every language of the EU so that all affected parties had a fair chance to respond.
  2. Clear explanatory documents, approved by an independent expert committee, on the pros and cons of the current patent system that the Community Patent seeks to redress; on the EPLA (which is undocumented except for the treaty text); and on the 2000 Community Patent proposal.

Opaqueness of the Process

The consultation procedure lacks transparency, and it is unclear why a small-to-medium enterprise should respond, especially given the lack of guarantees that the significant effort required to respond would be worthwhile:

  1. There is no explanation of how the collected information will be used and made available to the public. In previous consultation procedures, we have seen large numbers of responses rejected as being "not representative".
  2. There is no explanation of the procedure itself.

This opaqueness severely damages the credibility of the consultation procedure, and damages the credibility of any legislation that would be produced as a result of it.

We would have liked to see:

  1. A clear statement of the way the collected information would be processed and used, especially with respect to the relative weight given to small, medium, and large businesses that respond.
  2. A clear explanation of the consultation procedure, and what steps are taken to ensure that it is representative and fair.

Lack of Due Process

The consultation procedure lacks due process, and show signs of being prepared in order to justify upcoming legislation, rather than being an honest solicitation of public opinion:

  1. The timescale (ten weeks) is extremely short.
  2. The short timescale is compounded by the inaccessibility of the process. A firm operating outside the UK, France, or Germany, and lacking native and expert skills in the relevant areas, would have to hire translators and lawyers to analyse the questionnaire and the supporting documentation. This is not feasible within such a short timescale.
  3. There has been no effort to educate the target audience of the consultation on the substance: no information campaigns wider than a simple press release, no accessible an well documented websites, or supporting materials.

The lack of due process leads to severe doubts as to the honesty and purpose of the consultation procedure.

We would have liked to see:

  1. A campaign to inform the broader community of the current functioning of the European patent system and the reasoning behind the proposal for a Community Patent. This campaign should be run in all 27 states;
  2. Public debates organised in at least one, and preferrably several of the members states, to actively solicit views and feedback on the proposal;
  3. A properly written and translated introduction on the EPLA so that we do not need to attempt to read the draft treaty, a technical document that is not available in all the languages of the Union.

Biased Point-of-view

The questionnaire exhibits a clear bias in favour of extended patent holder rights:

  1. There are many references to the need to make it easier for patent holders to assert their rights, while there is no mention of the need to protect industries from the effects of patent inflation;
  2. The criteria of subject matter has been dropped from the list of main patentability criteria (section 4, point 1), which implies that the authors accept EPO TBA case law, and thus accept the validity of software and business process patents;
  3. The pertinent issues of software patentability, EPO accountability, and separation of powers in the patent system are completely absent from the questionnaire, though these problems are probably the most significant ones in the patent system, and the ones that any new legislation should address.

The biased point-of-view leads the reader to suspect that the document was largely drafted with EPO assistance, and is not designed to solicit debate on the real issues, but rather get rubber-stamp approval for a directive that would endorse EPO TBA case law, and would worsen, not correct, the current imbalances of power and institutional interest in the patent system.

We would have liked to see:

  1. Independent studies to decide on the real problems with the current patent system, before proposing some assumed problems and a set of solutions to these;
  2. A much better appreciation of the risks of a bad patent system, and of bad patents, rather than a simplistic recapitulation of the dogma of the need to protect the rights of patent holders, with no questioning of how and why those rights were granted.

Lack of Independent Oversight

The consultation procedure is conducted with no independent oversight:

  1. No independent or democratically-elected body is involved in the analysis of the answers to the consultation, nor the drafting of any consequent legislation.
  2. There is evidence that special interests were aware of, or even involved in the consultation procedure, long before it became public (from the prepared reactions by several large software firms).

The lack of independent oversight brings the entire consultation procedure into severe disrepute.

We would have liked to see:

  1. A committee of independent and representative experts, coming from the legal, and business domain, and whose task it would be to draft the questionnaire, prepare explanatory texts, organise information campaigns and the public debate, collect answers, and assemble these into a set of concrete recommendations;
  2. The exclusion of the EPO, professional lobbyists, and politicians from this committee.

Conclusions

The major failings in this procedure mean that civil society must choose to either ignore the procedure, question it, or participate and hope to be taken into account.

The FFII has decided that it will question the validity of the procedure, based on the serious lack of accessibility, which means that a majority of EU businesses are completely excluded from answering.

However, we also recommend participation, for those businesses that are able to do so, since this will demonstrate to what extent businesses in the "wrong countries" (those that do not have native English, French, or German speakers) are affected.

This document provides analysis, comment, and typical answers that we have helped a number of businesses to develop. You may find this information useful in phrasing your own answers.


Background Information

Hayek on Patents

"The problem of the prevention of monopoly and the prevention of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trademarks, and the like. It seems to me beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work.... Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect."

Source: F. A. von Hayek, "'Free' Enterprise and Competitive Order". In Individualism and Economic Order, Chicago: U. of Chicago Press. 1948. 113-114.

The European Patent Office

In 1973, some european countries signed the Convention of Munich, also known as the European Patent Convention (EPC) which established the European Patent Office (EPO). This convention cannot be changed without the agreement of all signatories. For example, article 52.2 of the EPC specifically excludes computer programs from list of patentable inventions. In 2000, a diplomatic conference tried and failed to remove this exclusion, lacking unanimous agreement.

The EPC is interpreted by the Enlarged Board of Appeal and the TBAs. These EBAs and TBAs have, over time, adapted their interpretations of the EPC so that computer programs and business methods are in fact patentable.

This evolution has happened in parallel with case law in the US, where the Supreme Court has ruled that "everything man-made under the sun" can be claimed in a patent.

However, TBA case law is not binding for EPC signatory countries. In most member states, there has not even been any litigation concerning patents whose granting was based on the "further technical effect" doctrine. And in those member states where such patents have been litigated, the outcome almost always disagrees to a more or lesser extent with TBA case law.

The result is that while software cannot, by law, be patented, the EPO has granted large numbers of software and business process patents (which we often together call "soft patents"), which patent holders then try to validate on country-by-country basis, often with inconsistent results.

The Cost of Patenting

For firms that seek patents (and broadly, this means either very large firms, or very specialised patent firms), the current situation is a clear barrier to wider application of their patents.

For firms that do not seek patents (and broadly, this is most firms that are of small-to-medium size), the current situation is a clear barrier to open trade within the EU, as products that may be legal in one country are illegal in another.

For economists and analysts, software and business method patents represent an extreme example of the expansion of exclusion rights, i.e. in which the state grants a monopoly in return in the hope for a contribution to a wider good.

The Community Patent

The "European Community" is represented by the Commission, the Parliament, and the Council of Ministers.

The "Community Patent" means that the Community would join the EPC as the 32nd signatory. If the 25 members states want to modify their Community Patent law, it would not be possible without the agreement of other signatories of the EPC and non-members of the Union, namely Monaco, Lichtenstein, Turkey, and Iceland. Possibly, it could also be blocked by other countries signing the EPC in the near future.

When the Commission represents the Community at the EPC and other similar bodies (TRIPS, WPC, WIPO), its mandate is given by the 25 Council members. This mandate is not currently (but probably should be) approved by the EU Parliament.

EPLA vs. Community Patent

The European Patent Litigation Agreement, in combination with the London protocol, would achieve most of the effect of the Community Patent, but would be passed without any parliamentary involvement.

This difference is important. We have at least three possible routes for a trans-EU patent system:

  1. The Community Patent as a Council Framework decision. Such a legislative procedure is currently running, but is deadlocked in the Council over translation disagreements. This procedure does not require involvement of the European Parliament, but requires unanimity in the Council.
  2. The Community Patent, in a co-decision procedure, in which Parliament can vote on the directive and ammend it if necessary. In this case, only a qualified majority is required in the Council.
  3. EPLA + London Protocol, in an inter-governmental procedure, in which Parliament is excluded from the process.

At the moment we have a (dead-locked) Council only regulation, which is at least a third route.

Largely the three routes arrive at the same end-point, but all but one bypass any chance to exert direct democratic control over the process. It is also unclear - to us, from the EPLA draft treaty text - whether the third route would take EPO TBA case law or the EPC text as its basis.


The Questionnaire

Introduction

The following comments and typical answers are more useful if you have a printed copy of the questionnaire to use as a reference.

The FFII has analysed the consultation procedure and questionnaire, and provides:

  1. An in-depth analysis of the problems with the current patent system, since we consider this information to be essential for anyone who wishes to understand and answer the questionnaire usefully.
  2. Comments and analysis on each section of the questionnaire.
  3. Typical answers that we have helped SMEs to write for the questionnaire. You may use these as the basis for your own answers but obviously we hope you will express your own opinion.

Section 1 - Basic Principles and Features

General Comments

The "balance" that the document mentions is not so much between patent holders and the patent system (which exists as a body of unelected and unaccountable officials and experts), as between patent holders and the rest of society.

Every patent grants a temporary monopoly, thereby distorting the market and costing society. A patent system that claims to represent society must be able to unambiguously demonstrate that these downsides are exceeded by benefits.

The text of the questionnaire appears to accept and defend patent holders' rights without discussion of the basis for granting these rights.

The general interest of all society must always take precedence over the rights granted to patent holders. If this cannot be guaranteed, the patent system will damage innovation, will prevent sharing of technological knowledge, will harm the business environment, and will prevent free and open competition.

Analysis

The European Patent Convention Art 52 sets clear substantive rules on the scope of patentability, but the European Patent Organisation's Technical Boards of Appeal (EPO TBA) blurred these substantive rules with their own inventions of terms such as "technical contribution" and "further technical effect". These TBA teachings are not followed by many national courts and this results in legal uncertainty, since patents granted by the EPO are not necessarily enforceable in all EPO member states.

Where the EPO TBA has exceeded its competences in order to widen the scope of patentability, clear and precise rules have to be reset. Any decision about the scope of Patent law lies in the competence of the legislator respective the contracting parties. The European Commission must therefore restore the EPC 52 rules and clarify them where such clarifications are needed.

A clear focus should lie on patent quality and strict definitions of what can be covered and what can not be covered by patent law.

'Balancing' the substantive rules applying to patentability can only happen if supported by an economic and social rationale. Therefore, such changes should happen under supervision of directly democratically elected bodies, so as to ensure an appropriate amount of checks and balances. It is FFII's view that such a policy can only succeed if the absence of a separation of powers and accountability in the European Patent Organisation is addressed.

In addition, as restriction of competition lies at the heart of the rights granted by a patent, FFII strongly supports the proposal to develop a stronger role for competition policy in the use of patents as an economic tool.

Answers

1.1 - These features are desirable, but not enough to guarantee a working patent system. In particular, we would like to see the restoration and clarification of the EPC art 52.

1.2 - Yes, as stated above. We would like to see more assurance that the system will produce good patents, and more protection against the scourge of software and business method patents.

1.3 - It is not enough to "take into account" the broader public interest, but this interest must be vigourously defended against those who would use the patent system against the public interest. To achieve this goal, consultations such as the present one, and subsequent modification of patent law, should be prepared with the involvement of society at large, instead of the close circle of patent holders and patent experts.

Section 2 - Community Patent as Priority for EU

General Comments

The features we would like to see in the Community Patent are:

  1. An assertion of democratic control over the patent system.
  2. A clear and solid separation of executive, legislative, and judicial powers, in the process of defining patent law, granting patents, and handling patent litigation. There should be an EU parliamentary enquiry committee on the independence of the EPO Technical Board of Appeal (TBA) and Enlarged Board of Appeal (EBA), and the results of this committee should be the basis for using the EPO TBA case law as the basis for the Community Patent, or not.
  3. The restoration of the EPC article 52, and undoing of EPO TBA case law concerning said article, which has allowed the patenting of damaging software and business methods. This should be compliant for eg. with current case law in Poland which is contrary to EPO TBA concerning definition of patentable subject matter (invention and technical contribution).

Analysis

Dealing with translation costs does not remove the danger of either ruinous litigation costs to small to medium enterprises, or of anti-competitive and abuse factors, which any move towards a pan-European system of patent litigation would risk enabling.

Community accession to the EPC should be based on reinforcing the clear exclusion of software and business methods from patentability rather than rewarding EPO slide, while addressing the problems of accountability and separation of powers.

According to the draft texts, Community Patents will be Community titles (Council Text, consideration 7, page 7), issued by the EPO, a non-Community organisation.

Accordingly there will be no appeal possible against granting these Community titles before a Community court (Commission proposal 2.4.5.2 page 15), or any other independent court. Further still the Community will have no influence at all on granting these Community titles and as a result, from the Community perspective, these titles are unaccountable.

The Community Patent proposal makes the EPO's Board of Appeal the highest authority on the granting practice. In turn the Community Patent Court / European Court of Justice will be the highest court in infringement / invalidity cases respectively. As a result two separate legal systems are created, allowing different interpretations of the European Patent Convention. This gives one organisation the right to grant patents, and another the right to invalidate them.

Answers

2.1 - The most important point is to separate the executive, legislative and judicial powers which are all currently performed by the EPO to some extent, as mentioned in the answer to the previous question. This implies that the EPO's TBAs/EBAs case law must not form the basis of community law, otherwise we discard the current patent laws and their interpretations by national judges in all member states. Even the UK, whose case law is closest to the EPO's case law, is still quite a bit more strict than the EPO. The European Community should not accede to the European Patent Convention in a way which hands over full authority on granting Community patents to a non-Community body (namely the EPO and it's TBAs and EBAs). Special care has to be taken too, that accession to the EPC does not lead to Community law made by the EPO, bypassing the Community's constituting treaties, bypassing the European Commission and Parliament.

For the Netherlands and more countries, the Community Patent will introduce retroactive liability. The Community Patent will make it profitable to apply for broad, vague and trivial patents, and then send out notices after some years. Since going to court will often be too expensive, SMEs will have to pay. The result: the Community Patent will make legal extortion profitable.

Belgium already has retroactive liability, but for a shorter period. The retroactive period will be longer than that in the US. It is ironic that abuse and extortion have led to a call for reform in the US, while Europe is in danger of going much too far on this point.

Section 3 - European Patent System and EPLA

General Comments

The underlying assumption of this section seems to be that patent costs and the lack of cross-European patent enforcement are the principal problems to be solved. It is FFII's view that there are more serious problems with the current patent system, namely the lack of accountability of the EPO resulting in its practice of granting patents that enter domains which should not be patented, risking severe negative economic consequences.

The current national litigation process is fully compliant with the requirement for separation of powers and thus produces better case law, which has kept the EU ICT sector relatively free from harmful software patent litigation.

The only parties who are handicapped by the current national patent litigation systems are very large firms who seek patents across all EU countries. Most firms are well-treated by national patent systems and courts. We do not feel that that multinational firms represent an economic majority. To the contrary, they are typically monopolistic in tendancy and their voice must be treated as being heavily biased towards self-interests.

Analysis

Any attempt to change the framework of pan-European patent litigation will have either an overall positive or negative effect on European competitiveness. On the basis of the EPOs current slide towards a US style system of unfettered software and business method patentability without true accountability, the risk to the Europe's competitiveness and the Lisbon agenda is considerable.

All appointments to any special court tasked to deal with European wide patent litigation must to be based on the principle of independence from the administrative body responsible for issuing the patents, whether at a national or European level. Therefore any draft statute which would allow current or former Board of Appeal EPO judges to qualify is clearly unacceptable.

The EPO patent system must be replaced by an EU patent system. We recommend specifically that the Community should take over European Patent Organisation's legislative role. The European Patent Office should be turned into a Community Agency, in addition, a European Patent Court should be a Community court.

Taken together with the creation of a separate European innovation office that should coordinate various innovation policy measures, we would then protect the balance essential to the instrument of patent policy and also Europe's competitive framework.

Answers

3.1 - If the EPLA were to enforce the high-quality patents defined by EPC article 52, this could have a positive impact. If the EPLA were to enforce the EPO TBA case law (and thus enforce software and business method patents), the results would be catastrophic.

3.2 - The national patent litigation system is the system that works best today for most firms. It is convenient in terms of geography, language, and culture. While an EU-wide litigation system would be useful if the quality of patents could be guaranteed, it would be a disaster in the present scenario where the quality of patents is falling through the floor, driven by the push to allow software and business method patents.

Section 4 - Approximation and Mutual Recognition of National Patents

General Comments

The text of the questionnaire lays the groundwork for passing the Community Patent directive under a co-decision procedure, meaning the law would need a qualified majority in the Council, and a majority in Parliament.

The basis for this legal process would be that the current patent system acts a barrier to the free movement of goods and services within the EU.

Analysis

The current problems in the European patent system have arisen not between member states but because EPO granting practice is not in line with its own rules, which national courts continue to observe.

There are areas where the current system acts as a distortion of competition, particularly where patents are used as non-tariffic trade barriers. These are areas that the competition authorities should investigate.

Answers

4.1 - Software and business process patents give rise to significant trade barriers and distortions of competition within the EU.

4.2 - Software and business method patents mean that producers and consumers of software are exposed to arbitrary litigation when they export their services to another EU country. Our business is affected in that we are unable to determine accurately whether our products and services are "legal" in other member states, so we are exposed to a significant and unmanageable risk if we decide to export. There is no insurance, for example, for patent infringement, and experience of e.g. Miller Insurance Services Ltd has shown that the reason for this is the fact that it is impossible for a company to provide a profitable insurance service in the current patent granting climate. (ADD A FOOTNOTE TO: http://en.eu.ffii.org/sections/bxl0411/program/)

4.3 - We notice that the "subject matter" criterium is missing from the list in point 1. Subject matter is a critical criterium, since it is on this basis that the EPO has granted tens of thousands of software and business process patents. The three options 1-3 are all unclear with respect to the rules on subject matter, and the question of whether EPO TBA case law overrides the EPC, or not.

4.4 - All proposals must come back to the basic question: does the system guarantee good patents, transparency, and accountability?

Section 5 - General

Answers

5.1 - Before the introduction of bad patents, the patent system was of low importance to us. We did not file patents since we operated in a domain that was adequately protected by copyrights. Furthermore, the EPO has told us on several occasions that software could not be patented, so we assumed this was "off the radar". However, since we started getting phone calls and threats from patent-owning firms, on the basis of pure software patents, we have been forced to move the patent issue to become a top priority.

5.2 - The patent system has traditionally only been applicable to innovations in fields of applied natural science. Our company has no direct experience with patents in this field, so we cannot comment on their effects there. However, when applied to other areas, the patent system creates significant distortions. These distortions are clear from any examination of the litigation that occurs in industries that produce or use software. The extreme case of software and business process method patents is of most concern. These patents create such distortions that they bring the entire patent system into disrepute. Even US financial analysts are starting to become concerned that the US is actually becoming less competitive by having software patents. (ADD A FOOTNOTE: http://www.cfo.com/article.cfm/5570346?f=home_featured)

5.3 - The greatest advantage of the current European patent system, based on EPC law, with respect to (e.g.) the US patent system is that it largely protects innovation from the predation of patent speculators (also called "patent trolls"). This happens through the effect of national courts, which tend to reject software and business method patents, and through language and cost barriers which prevent mass-patenting. Ironically, the higher cost of patents improves the quality of patents, as can be seen from the US, which has very low patent costs, and very low general quality of patent claims.

5.4 - My firm does not require or use patents. We rely on copyright, lead time, trade secrets, trademarks, customer relations management, a free market, open competition, and protection (by the state) from predation by firms that seek to use weak patent law in order to create "revenue streams" that are nothing more than taxes on the work done by others. The patent system is largely unusable and we stay as far away from it as possible. This was also confirmed as being the case in general for large, small and independent software developers (including developers of embedded software) in a study of German companies by the Fraunhofer Institute for Systems and Innovation Research in 2003 (ADD A FOOTNOTE: cfr p15-16 of http://trendchart.cordis.lu/Reports/Documents/Edler_Lux_2003.ppt)

5.5 Yes we would like to repeat these issues:

a) The current lack of and urgent need of separation of powers in the patent system.

b) The current lack of a comprehensive innovation management. The patent system is only one tool available in the legislator's arsenal of innovation policy measures. Far too often, more patents are equated with more innovation. The UK study mentioned in the Commission's impact assessment of the software patents directive (which received replies from 11 UK SMEs) showed that these SMEs in general did not care about patents. The conclusion was not that they did not need patents (this possibility was not even considered), but that they should be better informed about the usefulness of patents.

A Community Innovation Office, which bases its recommendations on input from businesses, academics and civil society, and which can formulate all-encompassing innovation strategies, would be much more productive and useful than yet another attempt to force the EU into following the EPO's case law. Patents should only be applied if a market is clearly distorted in a way which can be solved by introducing limited time monopolies. They may also prove to be useful in case innovation in a market is stagnant because knowledge is too closely guarded and barely disseminated, thereby hampering follow-up innovation by competitors. But they are not a magical means which one simply can apply to a field in order to make it even more innovative and competitive.

c) A functioning patent system must produce measurably good patents. This essential criteria is not mentioned anywhere. What defines "good"? How is this measured, over time? What rules are in place to protect that definition? How are those rules protected from the eternal hunt by patent specialists who seek to "hack" them into meaning something else? Which courts judge on these rules? How does the patent system adapt to change without becoming hijacked by vested interests? How does the patent system prevent the business of "patent speculation"? These are the questions that we feel are at the heart of the matter, not the superficial issues of patent cost, translation, etc.

Annex: FFII requests in order to clarify non-patentability of software

The legal principles needed to exclude software and business methods from patentability are quite clear. The FFII has attempted to summarise them as “Ten Core Clarifications”. These principles were in June/July 2005 confirmed by political majority of European Parliament. They were moved by four political groups (PES, Greens, GUE/NGL, IND/DEM) and substantial parts of three other (EPP/ED, ALDE, UEN). European Parliament clarification on software patentability should be included to any proposal introducing Community Patent. (Articles of Software Patent Directive (11979/1/2004 - C6-0058/2005 - 2002/0047(COD))and numbers of amendments in brackets, P6_AMA(2005)0207)

1. Definition of "Computer-Aided Invention"

(Art.1 Am.40=72=93=114=135=158; Art.2a Am.41=73=94=115=136=159)

A “Computer-aided invention”, also inappropriately called “computer-implemented invention”, is an invention in the sense of patent law the performance of which involves the use of a programmable apparatus.

2. Definition of "computer program"

(Art.2bc Am.44=76=97=118=139=162)

A “computer” is a realisation of an abstract machine consisting of entities such as input/output, processor, memory, storage space and interfaces for information exchange with external systems and human users. “Data processing” is calculation with abstract component entities of computers. A “computer program” is a data processing solution which can, when described in a predefined language, be executed by computers.

3. Objects of Product and Process Claims

(Art.5.1 Am.22 (JURI))

A computer-aided invention may be claimed as a product, that is as a programmed apparatus, or as a process carried out by such an apparatus. 4. Exclusion of Program Claims

(Art.5.2 Am.48=80=101=122=143=166)

A patent claim to a computer program, either on its own or on a carrier, shall not be allowed.

5. Freedom of Publication

(Art.5.2a Am.49=81=102=123=144=167)

The creation, publication or distribution of information can never constitute a patent infringment.

6. Negative Definition of "Field of Technology"

(Art.4.1 Am.46=78=99=120=141=164)

While products and processes in all fields of technology are patentable inventions regardless of whether or not they involve computer programs, the subject matter and activities within the computer programs are not patentable on their own.

7. Positive Definition of "Technical" and "Field of Technology"

(Art.2ba Am.43=61=75=96=117=138=161; Art.2bb Am.18 (JURI))

“Technology” is applied natural science. “Technical” means “belonging to a field of technology”.

8. Negative Definition of "Contribution"

(Art.4.2 Am.47=79=100=121=142=165; Art.4.2a Am.59=91=112=132=154=177)

A computer-aided invention shall not be regarded as making a technical contribution merely because it uses better algorithms so as to reduce the need for processing time, storage space or other resources within the data processing system. Accordingly, innovations involving computer programs which do not solve any problems of applied natural science beyond the improvement of data processing efficiency shall not be patentable. Computer-aided inventions are not considered to make a technical contribution merely because they make better use of data processing resources such as processing time or storage space.

9. Positive Definition of "Contribution" and "Invention"

(Art.2b Am.42=74=95=116=137=160)

An “invention” is a contribution to the state of the art in a field of technology. The contribution is the set of features by which the scope of the patent claim as a whole is considered to differ from the state of the art. The contribution must be technical, that is, comprise technical features and belong to a field of technology. Without a technical contribution, there is no patentable subject-matter and no invention. The technical contribution must fulfil the conditions for patentability. In particular, it must be novel and not obvious to a person skilled in the art.

10. Freedom of Interoperation

(Art.6a Am.50=82=103=124=145=168)

Wherever the use of a patented technique is necessary in order to ensure interoperability between two different data processing systems, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available, such use is not considered to be a patent infringement, nor is the development, testing, making, offering for sale or licence, or importation of programs making such use of a patented technique to be considered a patent infringement.

Analysis (last edited 2009-08-15 23:03:30 by localhost)

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