Christian Beauprez kindly wrote a comment to my September 26 entry "Horns Blog on Patent Vote".
He points out that the TRIPS treaty requires protecting computer programs as "literary works". Since that is not compatible with protecting them as patents, all countries awarding software patents right now are in violation of TRIPS, in his opinion.
He might be right. On the other hand, I would be surprised if the EU Commission asks for WTO sanctions against America and Japan in this particular case. As a reason for refraining from doing so, the Commission might point to Article 1 Paragraph 1 TRIPS:
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.
So, even if Member States are required to provide copyright protection for computer software as literary works, they might still be entitled by Article 1 to provide patent protection on top of that. The contrary view would imply an obligation to reduce the level of protection, which is quite the opposite of the purpose of TRIPS.
Anyway, I think this is an interesting idea. And I haven't seen it anywhere until now.
Posted by Karl-Friedrich Lenz at March 14, 2004 06:04 PM | TrackBack