Unease is expressed by various individuals (like Mr. Karl-Friedrich Lenz) concerning the intervention of non-European participants, in particular from the IIPI, in the political debate on the patentability of computer-implemented inventions. I do not share such concerns. Patents are a universal instrument used in a globalised world economy, and I do see absolutely no reason why patent politics should not be openly discussed on an international basis. As pointed out by some pseudonymous participant "three blind mice" it would be naive to think that Europe could prosper as a patent-free island embedded in a globalised economy equipped with a patent law also covering computer implemented inventions:
[S]oftware patents exist in the US. [T]he US is the world's largest market. [S]oftware developers in the US have no choice but to consider patents when developing their products. [S]oftware patents developed with a mind to patent issues can be sold anywhere in the world.
[S]oftware developers in the EU, thinking themselves immune to patent infringement claims, develop software without consideration to patents. [T]hese products cannot be sold in the US or Japan and this places the EU at a competitive disadvantage.
Yes, the EU is also a large market in sheer numbers, and China easily outnumbers the U.S. and the EU even if taken together but it would be naive to deny the technological superiority of the U.S. in many fields. If numerous products made in the EU and embodying computer-implemented inventions patented in Japan and/or in the US could not be exported to those countries because of lacking patent-awareness of European companies this would surely be a drawback for the European economy. And, not to forget, that many products finally assembled in the EU are composed more or less completely from components imported from other non-EU countries. In a globalised economy, this is quite a normal procedure. If patent license roalyties are due in the countries of origin, the European importers will have to pay them anyway.
There are some participants in the debate coming from the programmer's point of view denying that e.g. a codec device made out of a piece of software running on a suitable processor can ever be seen as an embodiment of a technical invention because of software comprises of abstract data structures. I think that this is a misconception. In patent law, software as a lingustic construct is entirely irrelevant. Only software running on a suitable processor can create effects which have any meaning in terms of patent law. However, when software is executed on a suitable processor, a certain real-world semiotic has to be atttributed to the objects defined within the static linguistic contruct which goes well beyond the syntax and semantics of a programming language. For example, if a piece of software comprises a certain object, say, a variable $VELOCITY, this object is embedded into the syntax of the chosen programming language and as well into the semantics of the run-time behaviour of that language. But only if this object within the static linguistic code is directly or indirectly conncted during the execution of the software to some physical entity reflecting the real world (in this case, a velocity value measured by some sensor and communicated to the computer via some I/O channel or at least a velocity value simulating a corresponding physical entity) then we might have a technical environment justifying the application of the principles of patent law within the context of software.
The pseudonymous "three mices" further say:
[O]n the other hand, the [F]édération [I]nternationale des [C]onseils en [P]ropriété [I]ndustrielle (FICPI), and the [A]sociation [I]nternationale pour la [P]rotection de la [P]ropriété [I]ntellectuelle (AIPPI), and the IIPI to which professor lessig kindly pointed completey fail to appreciate and address the issues we stated above. [T]hey are aloof to these legitimate concerns.
Concerning the IIPI, I would say this judgement is premature; they are not long active in this particular debate. However, I could understand if someone would be disappointed due to the intellectual lethargy of some long-standing professional organisations like those mentioned by the said posting (others could easily be added). There should indeed be more room for an open discussion of moderate solutions, eg. reforms on patent law exemptions for source code, initiatives to foster collective licensing models well known from the field of copyright also in the patenting business, and the like.
If the European Parliament should eventually insist on a complete ban of any patents on computer-implementable inventions in accordance with the doctrine of Stallman's Utopia, then the final spurt will happen in the EU Council in order to make sure under all circumstances that such irresponsible and misguided policy will not be blessed by the EU Council in the course of deliberations in a Conciliation Committee made up of representatives of both bodies.
On coming Monday, May 23, 2005, the Committee on Legal Affairs of the European Parliament (JURI) will have deliberations on the Draft Directive on the patentability of computer-implemented inventions (CII). Meeting documents are available on-line here.
Sad to see that JURI starts with the discussion of that matter substantially exactly where the chaotic voting rally of the European Parliament's first reading had ended: Numerous amendments aimed at blocking patents not only on computer-implemented inventions but also patents on each and every computer-implementable invention.
Some MEPs really seem to buy Stallman's utopia. FFII & their allies have shown superb propagandistic skills, indeed. If they should prevail it would not be to the benefit of the world economy.
One of the present problems of the patent system is the fate of the languishing patentability criterion of the "inventive step" or "non-obviousness". Patents have been granted by various Patent Offices all over the world where the fulfilment of this mandatory patentability criterion might be seen as problematic. Now there is a new initiative from U.S. Academia to revive the very substance of this criterion. Mr. Dennis Crouch, Patent Attorney at McDonnell Boehnen Hulbert & Berghoff LLP, reports in his blog Patently-O: Patent Law Blog:
"In January 2005, the CAFC decided Teleflex v. KSR — holding that there must be a suggestion or motivation to combining two or more references in an obviousness finding. This 'teaching-suggestion-motivation test' has been a stalwart of Federal Circuit obviousness jurisprudence for twenty years. During that time, the Supreme Court has not heard a single obviousness case.
KSR has petitioned the Supreme Court for a writ of certiorari — arguing that the Federal Circuit’s obviousness standard is too low. In its petition, the KSR argues that the CAFC’s jurisprudence is inconsistent with the Supreme Court’s most recent obviousness decisions of Anderson’s-Black Rock (1969) and Sakraisa (1979). In Sakraisa, the High Court held that a combination which only unites old elements with no change in their respective functions is precluded from patentability under 103(a). Under the Sakraisa standard, the Teleflex patent is arguably obvious. Although patent cases are rarely heard by other circuit appellate courts, a circuit split remains between the CAFC and several other circuits on this issue.
Two amicus curiae briefs have been filed in support of the petition for certiorari. An element of both briefs is that written proof of obviousness should not be required to prove basic knowledge or common sense.
An impressive group of law professors have banded together in support of KSR. The professors argue that the CAFC has essentially ignored the idea of a person having ordinary skill in the art (PHOSITA) and simply consults the scope and content of the prior art references. At best, the appellate court has relegated the PHOSITA to the role of a 'reference librarian, assisting in locating appropriate prior art references but apparently incapable of applying them in light of his or her knowledge or skill.'[...]"
A thorough discussion of the "could/would"-approach used in EPO practice might also be helpful to improve the European patent system. Perhaps such debate might be triggered by the discussions just emerging in the U.S.
The German Patent and Trade Mark Office (DPMA) has just released its 2004 Annual Report (PDF, in German only) reporting some increase in filing numbers for patents (plus 1.5 percent), utility modes (plus 1.1 percent), and trade marks (plus 6.2 percent). In contrast, filings for German national design registrations have dropped by 9.4 percent. At the end of 2004, a total of 2.255 Patentanwälte (German Patent Attorneys) were registered, an all-time maximum never seen before (Nevertheless this figure looks quite vanishing against the number of 132.569 Rechtsanwälte (Attorneys-At-Law) registered in Germany on January 01, 2005).
JURI: MEP Proposals for Amendments to Draft Directive on Patentability of CII.
An Official Document PE 357.845v01-00 of the Legal Affairs Committee of the European Parliament (JURI) conveying the various proposals for amendments to the Draft Directive on the patentability of computer-implemented inventions tabled by a number of MEPs is available here.
"Many of the top experts on the subject of intellectual property and global development shared views in Geneva last week at a World Intellectual Property Organisation seminar. But while the event may have served to spell out the current debate on the issue, it is unclear how the two-day event advanced the issue from a policy-making standpoint. The meeting was not intended to be a negotiation and no conclusions were drawn from it.
WIPO’s international bureau organised the event under instructions from last fall’s WIPO General Assembly, the once-a-year gathering of all member nations’ top representatives to the Geneva-based body. After last week’s event, WIPO officials indicated that it is unclear what will follow the 2-3 May seminar as no further events are mandated.
From an educational standpoint, the well over a hundred participants were treated to the current perspectives on the benefits of intellectual property for development, as well as numerous proposals for improvement of the current intellectual property system and arguments for the status quo.
WIPO this year is considering a proposal to rework its orientation so as to place greater emphasis on developing country concerns, following the lead of other Geneva-based bodies such as the World Trade Organisation. The issue is expected to come up again at next fall’s WIPO General Assembly.
In last week’s seminar, non-governmental organisations, academics, industry representatives and others welcomed the chance to air their views in a WIPO setting, considered by some as a sign of increased transparency at WIPO. But disagreements sometimes arose.
One of the more prominent disagreements during the week was between Prabuddha Ganguli, an intellectual property management consultant and patent lawyer in India, and James Love, director of the Consumer Project on Technology. Ganguli welcomed the recent return of India’s patent system after decades, while Love attributed India’s success in intellectual property to the absence of patents and said it had chosen to resurrect the patent law under pressure from the United States.
In addition, Love asserted that Indian consumers have benefited from the lack of enforcement of copyright laws, a point Ganguli publicly denounced on at least two occasions over the next two days.
In his presentation, Love also argued that knowledge should be placed in the public domain when it promotes social welfare and protects human rights. He touted a bill introduced in the U.S. Congress this year aimed at reforming the intellectual property system to separate the need to sell products at high prices to recover research and development costs.
The seminar was co-organised by the U.N. Conference on Trade and Development, U.N. Industrial Development Organization, World Health Organisation and the World Trade Organization. It was broken out by themes including public health, biodiversity and traditional knowledge, copyright and related rights in the digital environment, competition policy, intellectual property and development, and national best practices.
Sisule Musungu, an intellectual property expert from the South Centre, an intergovernmental think tank of developing countries, opened the event with a look at the turn toward a development agenda in other Geneva bodies, such as the WTO’s acknowledgement of governments’ need to safeguard public health. He compared these to WIPO’s focus on intellectual property protection which he said might be anathema to developing countries’ best interests, as is suggested in the proposal for a Development Agenda currently under discussion at WIPO. [...]"
The 2005 Patent Reform Bill might perhaps bring most dramatic changes to the U.S. patent system including a change from the first-to-invent doctrine to the first-to-file doctrine already adopted by the rest of the world, cf. also this opinion here. Also the introduction of a post-grant Opposition procedure into U.S. patent law is discussed. A review period of nine to 12 months would let the patent office, instead of the courts, address complaints converning the validity of a patent.
Mr. Dariusz Szleper of AIPPI Reports on ICC Meeting of the Commission of the Intellectual Property.
Mr. Dariusz Szleper of AIPPI has published an interesting Report on the ICC Meeting of the Commission of the Intellectual Property, Paris, March 15, 2005.
The 2005 ICC Roadmap on current and emerging intellectual property issues for business is available here.
Ms. Piia-Noora Kauppi MEP on Patentability of Computer-Implemented Inventions.
Ms. Piia-Noora Kauppi, MEP is member of the Parliamentary Group of the European People's Party (Christian Democrats) and European Democrats, and in particular also Member of the Bureau of the European Parliament, Member of the Committee on Economic and Monetary Affairs as well as Member of the Committee on Legal Affairs. In her capacity as a Member of the Committee on Legal Affairs she now has to deal with the EU Draft Directive on the patentability of computer-implemented inventions.
In a Draft Document recently circulating she has noted down some proposals for amendments of the Draft Directive as passed by the EU Council earlier this year. Below find my comments on some of the proposed amendments:
Proposed Amendment 1 - Recital 5a new:
"(a) The rules of the Convention on the Grant of European Patents signed in Munich on 5 October 1973, and in particular Article 52 thereof concerning the limits to patentability, should be confirmed and clarified."
"8(a) The European Patent Convention provides that the European Patent Office is supervised by the Administrative Council of the European Patent Organisation, and that the President of the European Patent Office is responsible for its activities to the Administrative Council. The Administrative Council is composed of representatives of the Contracting States of the European Patent Convention, a clear majority of which is formed by Member States. These representatives shall exercise such measures within their authority to achieve compliance by the European Patent Office with this directive."
This is a quite affronting approach to implement something like an unfriendly take-over of the EPO by the EU via the back door: Although the EPO is in legal terms completely independent of the EU, the voting power of the EU Member States in the Administrative Council is set to be used for gaining effective political control over the EPO. However, Ms. Kauppi should not forget that the Administrative Council merely decides on things like amendments to the Implementation Regulation of the EPC. The big deals are reserved for a Diplomatic Conference of all EPC Member States including countries like Switzerland which are not Member of the EU. For an earlier failed approach of an unfriendly take-over of the EPO by the EU through the front door, see here.
Proposed Amendment 5 - Recital 11:
"(11) In order for any innovation to be considered a patentable invention it should have a technical character, and thus belong to a field of technology. In order to be patentable, inventions in general and inventions which can be realized by a computer program in particular must be susceptible of industrial application, new and involve an inventive step."
Up to now, there is no legal term "innovation" in patent law. I am seriously in doubt whether it makes sense to add additional complexity to patent law by introducing the concept of "innovation" as opposed to "invention". The other assertions of this recital are clearly redundant; of course, in existing patent law, every patentable invention must be susceptible of industrial application, be new and must also involve an inventive step.
Proposed Amendment 6 - Recital 13:
"(13) Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention in the sense of the patent law."
See above: Introducing the concept of "innovation" into patent law surely will create more work for judges and members of the Boards of Appeal of the EPO but will not clarify the meaning of the law.
Proposed Amendment 7 - Recital 16:
"To be deleted from the EU Council's version: 'Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent.'
Justification given by Ms. Kauppi: 'The nature of the problem solved should be irrelevant to patentability. It’s the nature of the solution that counts. Problems are not invented, but solutions are, and it’s the invention that must be technical (or have technical character).'
Every method - whether computer-implemented or not - makes somehow use of an 'algorithm'. Moreover, Ms. Kauppi might not have understood the nature of the problem-solution approach which is a cornerstone of European patent practise at the EPO and also before many national Patent Offices. A solution can be specified only with regard to a problem posed, and the relationship between problem and solution can tell us a lot about the invention bridging both of them.
Proposed Amendment 9 - Recital 17a new:
"17(a) Member States shall ensure that the description shall disclose the invention as claimed in such terms that the technical solution can be understood, and state any advantageous effects of the invention with reference to the background art."
There is since ever a clause in patent law that the invention must be disclosed in sufficient detail such that the expert skilled in the art can work it. With regard to Ms. Kauppi's proposal, there is another problem: The "background art" is not (completely) known at the time of drafting an application and, hence, cannot fully be taken into consideration.
Proposed Amendment 10 - Recital 17b new:
"17(b) It would aid in the diffusion of information and the establishment of a comprehensive database of prior art, if patent applicants could, where feasible, but independently of the need for the purposes of sufficiency of disclosure to do so, file with each patent application relating to a computer-implemented invention a well-functioning and well documented reference implementation of a program suitable for use in implementing the invention, which can be made available to the public at the same time as the publication of the description. "
So, well, on a voluntary basis an applicant is also today free to publish "a well-functioning and well documented reference implementation of a program suitable for use in implementing the invention". This can cheaply be done e.g. by utilising the computer systems of an Internet hosting provider. What I do not see are the specific advantages of creating an obligation for Patent Offices to act as a hosting service provider.
Proposed Amendment 12 - Recital 21a new:
"21(a) The dominant supplier shall not be able to refuse to allow the use of a patented technique which is needed for the sole purpose of ensuring interoperability of two different computer systems or networks so as to allow communication and exchange of data content between them."
This is a quite broad general clause the problems of which seem to lie in the gory details. What does e.g. mean the word "sole" in this recital clause? Are there techniques at all for this "sole" purposes? What if they have other side effects? Are those side effects to be neglected? If so, why?
Proposed Amendment 13 - Article 2(a):
"2(a) "computer-implemented invention" means an invention within the meaning of the European Patent Convention, the performance of which involves the use of a computer, computer network or programmable apparatus."
As I already mentioned earlier in this posting, the European Patent Convention is - in legal terms - "off limits" for the EU. I don't think that it would be a wise idea to make secondary EU Law like, in this case, a Directive on the patentability of computer-implemented inventions, dependent on any other Convention which stands completely outside the system of the EU Law.
Proposed Amendment 14 - Article 2(b):
"2(b) "technical contribution", also called "invention", means a contribution to the state of the art in a technical field. The technical character of the contribution is one of the four requirements for patentability. Additionally, to deserve a patent, the technical contribution has to be new, non-obvious, and susceptible of industrial application. The use of natural forces to control physical effects beyond the digital representation of information belongs to a technical field. The processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes. The method of data processing by using a computer, network or other programmable apparatus is not considered to belong to a field of technology."
I disagree if Ms. Kauppi says that "technical contribution" is a synonym for "invention". An invention belongs to the realm of the intangibles and conveys a certain technical teaching. The technical contribution related to this invention says something about the relationship between prior art and the invention. Furthermore, I do not understand how a "technical contribution" can be susceptible of industrial application. Only an invention can have this susceptibility. The sub-clauses "The processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes. The method of data processing by using a computer, network or other programmable apparatus is not considered to belong to a field of technology." are really overkill - they might well be construed as if each and every technical teaching which comprises the processing, handling, or presentation of information is automatically rendered non-patentable. For example, a good old analogue TV set clearly is a device wherein a lot of effects are caused by controllable natural forces. Now, let us have a look at the transmission of colour signals in accordance with the PAL standard utilising the above-mentioned analogue TV set without any digital circuitry. According to Ms. Kauppi's proposal, the PAL method would not have been patentable because the analogue video data processed by discrete analogue electronic components can be seen as processing or handling of information. With other words, Ms. Kauppi's proposal in the effect is nothing else than an implementation of Stallman's Utopia where no signal-processing devices or methods are patentable whatsoever.
Proposed Amendment 15 - Article 2c new:
"2c 'field of technology' means an industrial application domain requiring the use of controllable forces of nature to achieve predictable results. 'Technical' means 'belonging to a field of technology'"
So, what is an "industrial application domain" - are there such domains at all not requiring the use of controllable forces of nature to achieve predictable results?
Proposed Amendment 16 - Article 2d new:
"2(d) The production and distribution of information goods is not an 'industry' in the sense of patent law."
Ms. Kauppi's Justification:
"Information goods can be reproduced on millions of computers within seconds at near to zero cost. More than material goods, information goods are suitable for production by freelancers. The economics differ, and the business models for information goods tend to be closer to those of the service sector than of the classical "industry" sector. This amendment clarifies, using a negative definition, a central term of Art 27 TRIPs which has been used in several provisions and amendments within this directive. If the term is to retain any limiting meaning at all, production information goods can not fall within it."
What are "information goods"? Does that mean that inventions concerning data storage media like CDs or DVDs are no longer patentable? Sounds quite ridiculous.
Proposed Amendment 18 - Article 3:
"(3) In order to be patentable, a computer-implemented invention must be susceptible of industrial application and make a technical contribution. The technical contribution must be new and involve an inventive step."
In Amendment 14, Ms. Kauppi had suggested that "technical contribution" is synonym to "invention". Now, an invention "makes" a technical contribution. There are a lot of flaws in this logic. What does Ms. Kauppi mean when she proposes that the "technical contribution" must be "new" and "involve an inventive step"?
Proposed Amendment 19 - Article 3b new:
"3(b) The application for a patent must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art."
Nothing new!
Proposed Amendment 20 - Article 4.1:
"4.1 Programs for computers are not inventions in the sense of patent law."
What is the meaning thereof? The EPC says, "computer programs as such" are not (patentable) inventions. Ms. Kauppi has deliberately omitted the word "as such". Why? To which effect? Of course, an invention can never be identical with a program - the first is an entity out of the realm of intangibles, the latter is a data structure fixed on a data carrier or travelling over a data channel. This clause sounds as if every invention implemented by means of a program should be seen as unpatentable but then there would be no need to further talk about patentability of computer-implemented inventions.
Proposed Amendment 21 - Article 4.1a new:
"4.1(a) A computer program is a solution of a problem by calculation with the abstract entities of a generic data processing machine, such as input, output, processor, memory, storage as well as interfaces for information exchange with external systems and human users. A computer program may take various forms, e.g. a computing process, an algorithm, or a text recorded on a medium. If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims."
I do not think that a computer program is the solution of any problem. It might be a codified text or data structure dedicated to be run on a processor, both taken together representing the solution of a problem. This is something entirely different. Ms. Kauppi's definition would put a 'program' purposefully nearby to the realm of the intangibles where the inventions reside. This is, however, definitively not true.
Proposed Amendment 22 - Article 4.2a new:
"4.2a Member States shall ensure that data processing solutions are not considered to be patentable inventions merely because they improve efficiency in the use of resources within data processing systems."
Why such clause? This is an unjustified discrimination against inventions making data or signal processing devices more efficient.
Proposed Amendment 23 - Article 5.1:
"5.1. Member States shall ensure that a computer-implemented invention may be claimed only as a product, that is as a programmed (deleted) apparatus, or as a process carried out by such an apparatus (deleted)."
Proposed Amendment 24 - Article 5.2:
"5.2 A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. "
I am not a friend of computer program product claims but probably on the basis of different motivations than Ms. Kauppi.
Proposed Amendment 25 - Article 5a new:
"5(a) Member States shall ensure that the distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent."
Ms. Kauppi's Justification: "Freedom of publication, as stipulated in Art 10 ECHR, can be limited by copyright but not by patents. Patent rights are broad and unsuited for information goods. This amendment does not make any patents invalid, rather it limits the ways in which a patent owner can enforce his patents. Such a provision should be complemented by other provisions which make sure that information patents are not granted in the first place. This amendment is a simplified and reduced version of article 7 paragraph 3 in the consolidated text of the EP’s first reading."
What shall that mean in practice? If there is e.g. a CD digital data storage medium which implements an invention concerning the arrangement of information-carrying data tracks on a substrate. Can this patent be enforced if such a CD is brought to market with, say, music pre-recorded on it?
Proposed Amendment 27 - Article 6a new:
"6(a) Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring interoperability of two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement. Member States must ensure that the court may require a patent owner to grant a licence for such use having regard to the public interest in permitting access to the patented technique, provided that a licence is not otherwise available for such use on reasonable and non-discriminatory terms and conditions."
Again, what is the real meaning of the word "sole" in this context? Are there any situations where a patented technique (whatever that might be, why did Ms. Kauppi not write "patented invention"?) really has only a "sole" purpose? I am in doubt.
Proposed Amendment 32 - Article 8a new:
"8a 1. Member States shall ensure that its representatives in the Administrative Council of the European Patent Organisation take such measures within their authority to ensure that the European Patent Office only grants European patents when the requirements of the European Patent Convention have been met, in particular with respect to inventive step and technical contribution as defined in Article 2(b).
2. The Council shall provide a yearly report to the European Parliament on the activities of representatives of Member States that are Contracting States to the European Patent Convention in the Administrative Council of the European Patent Organisation, and the progress that has been made to achieving the objectives set out in Article 8A.1 above.
Ms. Kauppi's Justification:
"This amendment recognises that the Member States are also Contracting States of the European Patent Convention and that Member States have some influence the practice of the European Patent Office, specifically with respect to maintaining high standards of examining patent applications in particular with respect to inventive step and 'technical contribution' as defined in this directive. Furthermore, this amendment requires Member States (in Council) to report to the European Parliament each year on what they have actually done to influence the EPO in this regard and on the progress that has been made towards the goal of minimising the grant of undeserving patents."
See above my comment on proposed Amendments 1 and 3.
Summarising my general impression from the above-presented preliminary analysis of Ms. Kauppi's paper, I am quite disappointed that even within the Group of the European People's Party (Christian Democrats) there seems to be quite an unjustified bias against the patent system. Ms. Kauppi's amendments seem not to codify any attempt to find a fair and workable solution but might be seen as merely a panic-driven attempt to close pretended "loopholes" for "patenting software".
In my opinion the only way leading to a fair Directive also taking into account the strategic interests of the industry is a a clear political commitment to abolish "Stallman's Utopia". Maintaining pro-forma a Directive on patentability of computer-implemented inventions but, at the same time, rigourously attempting to close alleged "loopholes" that would allow legal actions on the basis of such patents against entities commercially dealing with software is quite self-contradictory. Yes, allowing patents on computer-implemented inventions means that such actions must be possible. The introduction of the legal requirement of a "technical contribution" as already made by the Draft version of the EU Council prevents that there emerges any pressure from patents on pure business inventions. Technical solutions must be patentable also in future even if they are implemented by means of software running on a processor.
Since long it is an open secret that (although they seem to act independently from each other) the various grassroots groups of anti-patent campaigners like FFII e.V., Greenpeace, or Attac are tied together by a maybe vague but existing common commitment to a utopia of a world substantially free of Intellectual Property rights.
The booklet authored by Mr. Sebasitan Bödecker, Mr. Oliver Moldenhauer, and Mr. Benedikt Rubbel now gives a more concise overview of the political goals these new social grassroots movements desire to achieve. Unfortunately it is written in German; so there will be only a limited audience abroad.
Bödecker et al. present a 'tour d'horizon' covering all major areas of Intellectual Property including Copyright, Patents, Designs, and even Trade Marks are not left out. Of course, they are not neutrally discussing the pros and cons of these legal constructs but they provide food for agitation against them. On the long run, the authors want to promote a new social movement as powerful as the pro-environment campaigners now are. For today, they compare themselves with the environmental movement in its infancy fifty years ago. In as few decades as possible they want to become as powerful as the environmentalists are today.
Those who are dealing in a professional context with Patents and have a sufficient command of the German language should read the booklet in order to learn important facts about their political adversaries. As far as I know there is, at the time being, no other comparable presentation of the anti-IP movement. It will surely be necessary for all of them to be able to produce sufficient arguing in response to the allegations raised by the anti-IP campaigners.
Another interesting question in response to this booklet is the connectivity between copyright affairs, on the one hand, and patent affairs, on the other hand. Can the IP system be defended only in its entirety or will there be a considerable shear stress from groups defending the copyright system but not the patent system, and, not to forget, vice versa?
On March 17, 2005, the Technical Board of Appeal 3.4.3 of the European Patent Office (EPO) has taken a decision confirming that non-technical features cannot support the inventive step. The headnote of case T 0531/03 says:
"[...] 1. In the assessment of inventive step, features relating to a non-invention within the meaning of Article 52(2) EPC (so-called "non-technical features") cannot support the presence of inventive step [...].
2. An attempt to take into account the contribution of non-technical and technical aspects on an equal footing in the assessment of inventive step would not be in conformity with the EPC, since the presence of inventive step would in such an approach be attributed to features which are defined in the EPC as not being an invention [...]"
This case law looks to be completely in line with the pending EU Draft Directive on the patentability of computer-implemented inventions as endorsed by the EU Council.
Feel free to contact PA Axel H Horns via e-mail
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
interesting debate concerning the patentability of computer-implemented inventions going on in the commentary section of 
here.
