Axel H. Horns has a blog here. Just added it to my blogroll.
He points to a pdf-file of the text that was actually adopted in the EU Parliament on software patents.
And there is some preliminary comment from Horns. He called the vote an "earthquake in the patent landscape". And he has some unfriendly words like "nonsense" and "the text as amended by Parliament is rubbish" for the vote.
I'm not sure if that will help him make friends for his position in the European Parliament. These Members of Parliament are, after all, elected to debate and decide about important questions like this one. That's democracy. Dismissing the result of their work as "rubbish" might possibly backfire.
And I also hesitate to agree unconditionally with Horns's assessment that it is "completely nonsense" to believe that Article 52 of the European Patent Convention bans computer programs from patentability. Actually I would be guilty of believing this "complete nonsense" myself, as I have explained in detail in my book about the question "Grenzen des Patentwesens" (in German), see the link at the top of the left side bar.
As far as I know, this is the first time the question of software patents was ever debated in a parliament in any country worldwide. As the German highest Court, the Federal Constitutional Court affirmed just the other day (scroll down to numbers 67-71, in German), in a democracy important questions need to be decided by parliament, not by the executive (Wesentlichkeitstheorie). That case was about the right of a muslim teacher to wear a headscarf in class. If that is so important that it needs debate in parliament, then the question of software patents is too. Probably even more so.
So no, I don't think it would do to dismiss the European Parliament's will as rubbish and pretend that nothing happened. Of course the patent movement might try to sneak software patents on us anyway behind closed doors in a revision of the European Patent Convention. Frits Bolkestein threatened that quite unabashedly. That however, would seem to be against the democratic principle, as stated by the Federal Constitutional Court.
But then again, amending the European Patent Convention would need ratification in Germany and other Member States of that Convention. And in Germany, that would need a majority in Parliament.
That means that there really is no work-around to avoid a democratic debate for the patent movement. If they try to go the Patent Convention amendment route, they will face the problem of getting that amendment ratified in all Member States.
That won't be easy. There really is a lot of opposition to these plans all across Europe.
Link to New York Times article about the vote found at Weatherall's Law.
Posted by Karl-Friedrich Lenz at September 26, 2003 05:22 PM | TrackBackDear Dr. Lenz,
As someone who studied Law at the University of Kent and programming for 4 years (self taught) I have observed the debate on the status of computer implemented inventions with great interest. Of particular note to me was the implication of the relevance of the EU's obligations under the TRIPS treaty (Article 5) often quoted by “computer implemented inventions” enthusiasts,
“1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions,whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. ”
And this is apparently why the EU has to consider “computer implemented inventions” patents.
The European Patent office have stated in their case law under the “computer implemented inventions” chapter ,In T 1173/97 (OJ 1999, 609) and T 935/97
“Programs for computers could be considered as patentable inventions if they have a technical character.”
At the same time however both views ignore very specific provisions for “computer programs” under the WTO (TRIPS) treaty that bound all signed "European Communities" members although apparently not the EPC (thus not the EPO directly) according to their claims, this is possibly how it was overlooked. Article 10 of said treaty clearly states:
“Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).”
This is the strange thing you see, the statement doesn't seem to mean that much on first glance. It is only when reading it closely that one realises that it does not simply say that “computer programs are automatically copyrighted under the Berne Convention”,
it specifies they “shall be protected as literary works”.
Literary works cannot be patented because they are not inventions. Indeed if literary works could be patented one would have to concede that books, screenplays, and music could be patented as well although according to my research there is no provision for this in law. We would also have to apply patent laws to these areas since we are not allowed, apparently under article 5 to restrict on the basis of the field of technology .
Because publishing takes place on a non-material medium does not mean that we can apply concepts to software publishing or web publishing that we would not apply to any other form of “literary works”. If we did, we could not then say that we were protecting them correctly under the criteria laid out explicitly in the TRIPS treaty.
I wanted to make sure that my interpretation was the correct one, so I looked in the overview notes of the TRIPS website. What I found further confirmed my interpretation,
"This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply to literary works shall be applied also to them. It confirms further, that the form in which a program is, whether in source or object code, does not affect the protection. The obligation to protect computer programs as literary works means e.g. that only those limitations that are applicable to literary works may be applied to computer programs."
Therefore not only would it be untrue to say that the WTO (TRIPS) treaty requires the EU to treat software as a patentable invention as opposed to a literary work . Quite the opposite, under this treaty, any signatory who does not protect programs “as literary works” could be said to be in breach under WTO rules. Patenting of computer programs of any description could therefore be said to be in violation of this treaty, because it would mean no longer protecting computer programs as “literary works” but as “inventions” and they cannot be both.
This is a fundamental point that to my knowledge has been overlooked by various patent offices, and just about everyone in the debate. I do hope that none of the proposed laws for software, computer programs or “computer implemented inventions” will make us liable for trade sanctions under explicit WTO obligations. Please pass my discovery around as you see fit.
Yours Sincerely,
Christian Beauprez
I my opinion software cannot be patented at all, as well as many other things. It's just a piece of work done by a person.
Posted by: Alex Badrazor on March 29, 2004 03:45 AM