BLOG@IP::JUR

Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

Disclaimer & About This Website

Visit the archives

Monday, June 14, 2004

German F.D.P. fishing for Compliments amongst Anti-Patent Activists.

The German

Free Democratic Party (F.D.P.) has started a somewhat odd initiative to launch a

draft resolution [in German only, sorry] on the question of patentability of computer-implemented invention in the lower House of the German Parliament (Bundestag).

So, what's odd with this draft resolution?

On May 27, 2004, a number of MPs belonging to the

parliamentary group of the F.D.P. in the Lower House of Parliament suddenly discovered that the political

agreement as reached in the session of the EU Competitiveness Council on May 18, 2004 was wrong. The draft resolution now demands the German Government to withdraw her support for this political compromise given on that session. Has the German Government ever post festum withdrawn her approval concerning any EU compromise reached on the level of ministers? Doing so surely would evoke a major political crisis of the EU.

The more odd, however, is the statement of grounds given in the F.D.P. draft resolution: "According to Article 10 of the

'Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)' software shall be protected according to the rules of copyright law. [...] A protection of ideas by patent law is hardly compatible with the protection of the manifestation as granted by copyright law."

This is, frankly speaking, rubbish. Article 10 paragraph 1 of TRIPS reads:

Article 10
Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

2. [...]

And, Article 9 paragraph 2 of TRIPS reads:

Article 9
Relation to the Berne Convention
1. [...]

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Finally, I'll give a quotation of Article 1 paragraph 1 of TRIPS:

Article 1
Nature and Scope of Obligations
1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

2. [...]

With other words: Article 10 just makes sure that in any case the expression of the fabric of software code must be protected by copyright law. It does not say that software is to be protected solely by copyright law. Article 1 clarifies that - amongst other provisions - Article 10 codifies a minimum standard of protection for software. According to Article 9, the copyright protection is limited to expressions only, not to the underlying to ideas, procedures, methods of operation or mathematical concepts as such.

The expert jargons of copyright law and patent law are quite different. Some aspects of that what a copyright expert would call an "idea" in the sense of Article 9 would be seen as an "invention" by a patent law expert. No provision in TRIPS or elsewhere hinders the contracting states in providing at the same time both copyright protection with regard to the expression of the fabric of software code as well as patent protection for some novel, non-obvious and technical aspects of the ideas underlying the said expression and becoming effective whenever the software is run on an appropriate processor.

So why all that fuss installed by members of the parliamentary group of the F.D.P. in the German Bundestag?

If they really had the intention to turn away the option for allowing patents on computer-implemented inventions, why did they not launch a corresponding campaign well before May 18, 2004? And why did they afford such addlepated statement of grounds for their sudden turn? To be honest, I don't know.

I would, however, not be very surprised if all that has been a hard-nosed political plot put on stage to happen just after the Brussels decision on May 18 but well ahead of the elections for the next European Parliament which took place in Germany on June 13, 2004 in order to gain, without really affecting the German position in the EU Competitiveness Council, some additional votes from those IT guys who are opposed to the current patent system but think they can't afford to vote green.

[Permalink]