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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Friday, November 19, 2004Some Comments on the Debate in Poland concerning Computer-Implemented Inventions.One of my readers from Poland provided me with a comment on my recent posting concerning the Polish position on the political agreement for the Draft Directive on the patentability of computer-implemented inventions. He wrote that there are reports from participants of the meeting organised by the Ministry of Education and IT saying that some participants might have used different texts of the Draft Directive and that the text that was distributed by the Ministry had a major translation error - "programmed computer" was translated as "computer program".
Such grave translation errors might well have confused the entire debate in Poland concerning the text of the Draft Directive as politically agreed upon by the EU Council in May this year. According to the nosoftwarepatents.com campaign "patent lawyers" are said to have confirmed at that meeting that the present proposal of the EU Council does make all software potentially patentable. However, the question asked by the Polish Government was looking from the side of infringement, not from the side of the material criteria of patentability. To systematically mix up the question of the criteria for determining the material patentability of computer-implementations (which is so far the single point dealt with in the Draft Directive) on the one hand, and the other question of which acts might be considered a direct or contributional infringement of a patent claim (on which the Draft Directive is completely silent), on the other hand, is a constantly used tool out of the toolbox of propagandistic tricks held by the current anti-patent movement including  FFII e.V. and nosoftwarepatents.com
The basic policy of the anti-patent campaigners with regard to software protection is the doctrine of "copyright only". Mr. Hartmut Pilch, President of FFII, writes:"[...] Our constituents' basic interest is to keep the software free from patents, regulated by copyright only. I.e. even if there are patents on the much cited 'anti-blocking system', 'washing machine', 'intelligent vacuum cleaner' etc., they must apply only to the makers and users of the devices, not to people who create or provide software (= control logic, similar to user manuals) for these devices. [...] We have a good law already, but some patent courts are not respecting it. [...] We can accept almost any directive, as long as it consists only of clear and simple exclusions from patentability. Art 52(2) EPC consists of such exclusions. It says in clear and simple terms what is not an invention in the sense of patent law. [...] Our first and most basic demand is 'no program claims, no direct or indirect infringement by software distribution'. [...] We can not accept restrictions on the use of equipment that consists of general-purpose computers only. Patent claims of whatever form (process, device, system and method, ...) are unacceptable when the contribution to the prior art consists of pure data processing (i.e. instructions for operation of general purpose data processing equipment). [...]"It seems not to be a fault to assume that their main political goal - within the context of their doctrine of "Copyright only" - is to bring about a state of the affairs in which neither commercial creating of, using of or dealing with computer software can be judged as a form of patent infringement, be it immediate or contributory. Such attempt is, however, necessarily utmost inselective in terms of patent law as it requires not only that a ban would have to be imposed on patenting any computer-implemented invention. Even an invention not actually said to be implemented on a computer which, however, might potentially also be implemented by means of a computer, i.e. a "computer-implementable invention", would have to be exempted from being patented. The consequences of such policy would be extremely grave as each and every signal processing device can be seen as potentially computer-implementable. In fact, the consequences of the various Eurolinux proposals would be to reduce the scope of the patent system to chemistry (including biotechnology), mechanical engineering and certain remaining branches of power-line electrical engineering.
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