[Patents] Re: WTO challenge to software patentsSoftware patenting

[PILCH Hartmut phm@a2e.de]

> Of course, they usually are otherwise allowed.  Article 27 of TRIPS
> requires member governments to grant patents on "any inventions, whether
> products or processes, in all fields of technology, provided they are new,
> involve an inventive step [or are non-obvious], and are capable of
> industrial application."  Yet this does not authorize patents on obvious
> products or processes, or on things that are not "inventions."  Article 1
> of TRIPS authorizes members to "implement in their law more extensive
> protection than is required by this Agreement."  This might be read to
> permit patents, trademarks or copyrights on anything whatsoever, whether or
> not new, obvious or original.  Yet such a reading could have abberrant
> consequences, and does not conform to the commonly understood definitions
> of patents, copyright, or intellectual property.  The only other section of
> any WTO agreement to mention patents, Article XX(d) of GATT 1947,
> authorizes members to take measures "necessary to secure compliance with"
> patent laws.  Yet it is not "necessary" to issue an invalid patent, nor
> does doing so secure compliance with the patent laws (and Article XX(d)
> applies only to goods, not services).
> 
> It thus seems possible that WTO member governments can ask the WTO to rule
> that an obvious patent issued by the US (or possibly other countries)
> violates GATT 1947 or GATS.  Also, the term "invention" in TRIPS Art. 27
> should arguably be construed as it would have been understood when TRIPS
> was adopted in 1994.  At that time, many thought that relatively "pure"
> software patents were not "inventions" at all, but algorithms that were
> "discovered".  A WTO member might therefore ask the WTO to rule that many
> US software or other patents violate Art. II.4 of GATT 1947 or Art. XVI.2
> of GATS on this basis as well.

When TRIPS was negotiated and adopted, the EPC 52 exclusion list was
valid, and it is nowhere stated that this list must be changed.  TRIPS Art
27 says (or can be construed to say) in abstract terms, that the
signatories agree to refrain from arbitrary exclusion of any specific
industry.  Let's say if India thinks it needs to create a national
pharmaceutic industry and for this purpose shield this industry from
foreign competition by all sorts of measures such as import tariffs and a
special exclusion of pharmaceutics from patentability, then that would
violate TRIPS in spirit and letter.  However "computer programs" are, just
as "mathematical equations", to be understood as a form of knowledge
embodiment and not a field of technology.

Under EPC 52 (in a consistent interpretation, which is no longer practised
by Eur lawcourts), any technology can be patented, but this patent can not
be enforced against equations or software but only against hardware.
Software after all is, just like mathematics, not confined to one field of
application but pervasive in all of society, from industrial process
control to accounting, education and democratic decisionmaking. Although
we talk about the "software industry", software doesn't imply an industry.
As the OpenSource development shows, there is even a conflict between
proprietarisation and quality of software: software wants to be "free" --
i.e. non-industrial.  And TRIPS leaves each country free to define "field
of technology" and "industrial applicability" independently.

So the European (or Indian) software exception does not violate any
Free-Trade treaty, while the American practise of patent inflation does,
since it creates arbitrary monopolies in favor of US companies.

-phm