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Friday, February 20, 2004News on the patentabilty of computer-implemented inventions.In my earlier posting I had indicated that there was a then "LIMITE" classified  Working Document 5570/04 of the EU Presidency under the title "Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions - Presidency compromise proposal". Now this paper has been partially released, and the public may have access to the the content of said Document 5570/04, with the exception of the parts reflecting the positions of the delegations. Hence, it looks as if the Irish EU Presidential proposal comes somewhat near to the content of  Document 14017/02 conveying a "common approach" of COREPER dated November 08, 2002. Most of the amendments of the first reading of the European Parliament inspired by the FFII e.V. have been removed.
Article 3 of the original draft by the Commission requiring that Member States shall ensure that a computer-implemented invention is considered to belong to a field of technology remains deleted.
With regard to Articles 4 and 4a, provision is made that Member States shall ensure that a computer-implemented invention making a technical contribution constitutes a necessary condition of involving an inventive step. A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable. In Article 5, the problem of "computer product claims" is tackled by requiring that a claim to a computer program, either on its own or on a carrier, shall not be allowed unless that program would, when loaded and executed in a computer, programmed computer network or other programmable apparatus, put into force a product or process claimed in the same patent application. The common approach of 2002 had required in its Article 6 that the rights conferred by patents granted for inventions within the scope of this Directive do not affect acts permitted under Directive 91/250/EEC on the legal protection of computer programs by copyright, in particular under the provisions thereof in respect of decompilation and interoperability whereas the present compromise more precisely but limiting mentiones Articles 5 and 6 of that Directive 91/250/EEC only.
Article 5 of the Directive 91/250/EEC reads: 1. In the absence of specific contractual provisions, the acts referred to in Article 4 (a) and (b) shall not require authorization by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. Article 6 of the Directive 91/250/EEC reads: 1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to to so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a); and (c) these acts are confined to the parts of the original program which are necessary to achieve interoperability. I do not completely understand what that actually means. Has Article 6 of the draft Directive to be read in conjunction with Article 5 Para. 1 of the Directive 91/250/EEC to the effect that no patent infringement can be assumed where a software is licensed with regard to copyright? This sounds absolutely correct if the copyright licensor is identical with the patent bearer - but what will happen if the copyright licensor is different from the patent assignee? Perhaps Recital 18 might be seen as an attempt to restrict this effect to patent rights of the copyright holder - but that can hardly be deduced from the wording of Article 6. Anyway, it is absolutely clear that the FFII is furious about the Irish attempt to avoid any definition for the concepts of "technical contribution", "technical character", "field of technology" or the like. The original draft issued by the Commission as well as the compromose draft of the Irish Presidency describe a certain "patentability test" as a well-defined method of applying a concept of "technicality" (which is not defined in the Directive) to any given claim. What the activists of the FFII had recognised was that as long as the concept of "technicality" was left for definition to the Patent Offices as well as to the Courts, the outcome of such test was not completely predetermined in a political sense. Hence, what the FFII activists had proposed and later on succeeded to lobby through the European Parliament was the idea to rigidly clamp the concepts of "technology" or "technicality" to a world and a context that would fit much more the reality of the first industrial revolution in the nineteenth century than that of the Information Society in the twenty-first century.
It seems to be quite clear that the Council as well as the Commission refuse to provide any fixed definition of "technicality". This will surely prevent us from being bombed back to the world of the nineteenth century as intended by the FFII but it might render the entire Directive fruitless in view its ultimate goal to provide legal certainy. If the Directive should eventually be enacted more or less as proposed by the Irish Presidency I expect that the legal disputes before the Patent Offices and Courts will continue, fueled by different approaches to the concepts of "technology", "technicality", "technical contribution" etc. pp. A particular problem of the Draft of the Irish Presidency is posed by certain references to the European Convention, in particular in Recital 7b stating that the aim of the Directive is not to amend the European Patent Convention but to prevent different interpretations of its provisions. Such arguing is highly problematic in view of the Vienna Convention on the Law of Treaties requiring in Article 31 Para. 1 that a treaty (here: the EPC) shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The EU is simply not entitled to interfere with the interpretation of the EPC unless, after havong joined the EPO, it contributes actively to the further development of the EPC and the related Implementation Regulations.
The discussion will be continued behind closed doors on March 02, 3004 in Brussels.
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