[Patents] Schiuma's evidence on the TRIPS trick

[Bernard Lang Bernard.Lang@inria.fr]

Really excellent analysis ... but ...

I doubt the rants of Daniele Schiumain are worth your effort...
 except inasmuch as he provides us with more arguments, as you have
shown.

You accept to discuss on his ground, but you should rather or
primarily state that he has none to begin with.

 The trick of lawyers is to place the issues in their own fictitious
world.  If that were justified, the law would never evolve, or would
do so according to the oniric evolution of lawyers dreams.


  But the law is here to express real world and social consensus. In
the case of patents, it must be explained in terms of human rights,
economic growth, social benefits, innovation incentives (in random
order).

The job of Lawyers is syntax: to put the conclusion in usable wording,
not to change or extend the semantics based on purely textual
argumentation.

  The first fallacy of Schiumain's rants is that he has no legitimity
to begin with, as is the case for all layers when it comes to decide
whether an existing law applies to a different subject matter.
  This fallacy is the origin of many problems with the current changes
in economics.

  Lawyers are incompetent in both senses of the word:
   - they do not have the knowledge (technical, economic, social)
   - they do not have the legitimacy

  But, like most, they want the power.

  We should be careful not to give them legitimacy by arguing with them.

On the other hand we can use their arguments against them
  (as you most remarkably did)

for example,
       since they recognize that technical and economic issues
matter, by using them as argument on occasion, we can just ask them
what studies have been made on this ground to justify patenting.

Stating that software "has become a huge industry with an annual
economic growth of 13%" does not justify patenting according to the
recognized original purpose of patents.
   It is purely ideological, and at best may show that the lawyers who
drafted TRIPS did a lousy job.
   On the other hand, it recognizes the importance of economic issues,
and hence, raise the only question that matters: why is there no
economic study of the issue (ther are, going against patenting), why
no concrete impact study at all.
  If coherent, M. Schiumain should be screaming for one.

  Reality as we know it best now is the ultimate yardstick, not the
approximate or erroneous descritpion made by past lawyers (or
economists or scientists).


On the other hand, your evidence collected from his own writings will
be very useful.

Amicalement

bernard

On Sat, Jun 10, 2000 at 11:47:02PM +0200, PILCH Hartmut wrote:
> I am currently reading an article by Daniele Schiumain the legal journal
> IIC Vol 31, which vehemently argues that the 'computer program' exception
> in EPC 52(2) is non-conformant to TRIPS 27 and must be deleted.
> 
> To facilitate the discussion of this article, I first quote TRIPS 27:
> 
> <<
>                                       Article 27
>                                            
>                               Patentable Subject Matter
>                                            
>    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.See footnote 5 Subject to paragraph 4 
> of
>    Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, 
> patents
>    shall be available and patent rights enjoyable without discrimination as 
> to the
>    place of invention, the field of technology and whether products are 
> imported or
>    locally produced.
>    
>    2.    Members may exclude from patentability inventions, the prevention 
> within
>    their territory of the commercial exploitation of which is necessary to 
> protect
>    ordre public or morality, including to protect human, animal or plant 
> life or
>    health or to avoid serious prejudice to the environment, provided that 
> such
>    exclusion is not made merely because the exploitation is prohibited by 
> their
>    law.
>    
>    3.    Members may also exclude from patentability:
>    
>        (a)    diagnostic, therapeutic and surgical methods for the 
> treatment of
>    humans or animals;
>    
>        (b)    plants and animals other than micro-organisms, and essentially
>    biological processes for the production of plants or animals other than
>    non-biological and microbiological processes. However, Members shall 
> provide for
>    the protection of plant varieties either by patents or by an effective
>    sui generis system or by any combination thereof. The provisions of this
>    subparagraph shall be reviewed four years after the date of entry into 
> force of
>    the WTO Agreement.
> >>
> 
> The argumentation is built on the presumption that regional legal
> definitions of "field of technology", "invention" etc should be avoided
> and a uniform global legal definition should be constructed, because the
> object of the TRIPS treaty is "reducing distortions and impediments to
> international trade" and the non-uniformity of patent law regarding
> software is such a distortion.
> 
> This is one of many unreflected presumptions that make the argumentation
> circular.  TRIPS is intended to "harmonise", as it was always called, not
> to "uniformise" the systems of various countries.  It imposes more
> abstract rules such as that no country shall arbitrarily exclude any field
> of technolgy it happens to want to protect.
> 
> Here is another example of the circularity of Schiuma's reasoning:
> 
> <<
> Even in light of the exceptions in Art.27(3) of TRIPS, it does not appear
> permissible to construe the term "inventions" in Art. 27(1) differently on
> a country-by-country basis by using the different legal definitions in the
> individual member states.  Article 27(3) specifies definitely those areas
> of invention that a member can exclude from patentability.  The attempt to
> expand artificially the areas of exclusion permitted by Art. 27(3) by
> using a "national" legal definition of the concept of the "invention" to
> exclude from patentability subject matter that is actually to be patented
> pursuant to Art. 27(1), would thus represent an attempt to evade
> Art. 27(3) and would lead to a conflict between the provisions of
> Art. 27(1) and (3). 
> >>
> 
> Here Schiuma presupposes what he wants to prove.  Also he seems to build 
> on a a wordplay: "those areas of invention that a member can
> exclude" isn't the same as "legal definition of the term invention".
> If that legal definition is different in a country, then the scope of
> "subject matter that is actually to be patented pursuant to Art. 27(1)" 
> is also different in that country, and that without recourse to any list
> of "areas that a member can exclude".  
> 
> Schiuma proceeds to argue that patenting software is more in accordance
> with TRIPS than not patenting and therefore the whole world must uniformly
> patent software.  This argumentation, as most legal argumenation contains
> a lot of personal politico-philosophical assumptions mixed with a
> complicated set of laws and caselaw.  This is a dishonest trick used by
> lawyers to usurp legislative power from the People.  Here is an example
> of Schiuma's philosophy on software: 
> 
> <<
> .. no [ TRIPS negtioation group ]  member equated or intended to equate
> software with mathematical methods or the like.  This would also be in
> conflict with the nature of software, according to which specific
> (program) commands cause a physical change in specific elements of the
> computer.  Accordingly, computer programs, i.e. software, are always of
> technical nature.  In contrast, mathematical methods and scientific
> theories (as such) represent pure knowledge that causes no physical
> changes in its abstract form.  Only the application of a mathematical
> method, for instance, in a particular field of technology (e.g. by means
> of a computer) causes a physical change and would thus be technical.
> >>
> 
> This is completely inevident.  Software programs as such (i.e. when not
> running) also don't cause a physical change in any element of the
> computer.  And even when running, this change does not go beyond the
> normal predisposition of the computer.  
> 
> A program has one thing in common with a machine:  it behaves.  But it has
> another thing in common with a mathematical formula: it is equivalent to
> it, and it is pure information which can be copied.  Why should it be up
> to lawyers to decide which of these is more essential.  How can one decide
> in just a few sentences like above?
> 
> There seems also to be a big non sequitur in the following paragraph:
> 
> <<
> Just as pharmaceutical and agrochemical products can be included within
> Art 27 of TRIPS without any difficulty, and thus can be ascribed to a
> "field of technology", software inventions can also be qualified as
> belonging to a "field of technology".  Correspondingly, software cannot be
> excluded a priori from the "field of technology" and thus from Art 27(1).
> >>
> 
> If software "*can* be qualified as .. f o t", that doesn't imply that it
> "cannot be excluded ...".  Does Mr. Schiuma really ignore the difference
> between *can* and *must* ??
> 
> The question of economic effect and wishability of software patenting does
> not appear in Schiuma's writing, but there is the assertion that software
> has become a huge industry with an annual economic growth of 13% which
> deserves equal "protection" with other "fields of technology".
> 
> During the process of this argumentation he finds some contradictions
> between TRIPS and software patenting and even contradictions between the
> EPC and the EPO's legal practice.  He resolves all these by reference to
> his initially stated basic presumptions that the world's IP system must be
> uniformised.  Again we have a mixture of caselaw with implicit more or
> less naive presumptions.
> 
> [ These are imho in sharp contradiction to the democratic
> nature of our polity, because they give the peolpe no freedom to decide
> anything.  All decisions have to be made in a world context, in which no
> polity and no democracy exists.  This is why during the  TRIPS talks there
> was only talk about "harmonisation" -- maybe in bashful conscience of the
> undemocratic decisionmaking that was under way.  Now that TRIPS is valid,
> the real intention of "uniformisation" seems to come out, which is why
> there was a revolt in Seattle. ]
> 
> Schima's article can be quoted to support some of our criticism of the
> EPO.
> 
> HYPOTHESIS 1: The German legislature, when ratifying TRIPS, assumed that
> software in European law is "not field of technology" and that this
> European view is conformant with TRIPS.  Thus, our patent lawyers are
> clearly trying to impose their view on that of their sovereign:
> EVIDENCE FROM SCHIUMA:
> 
> <<
> In its ratification of GATT/TRIPS, the German legislature saw no conflict
> between Sec. 1(2)(3) and 1(3) of the Patent Act and Art. 27(1) of TRIPS...
> 
> ...
> 
> Leaving aside this inaccuracy, the teneral criticism can, however, be
> raised that the German delegation's reply takes as its starting point the
> German/European interpretation of the concept of "in all fields of
> technology" in Art. 27(1) of TRIPS, which, as shown above, is
> inadmissible.
> 
> Within the meaning of Art. 27(1), software must be regarded both as an
> "invention" and as part of a "field of technology", with the result that
> the exclusion of software "as such" from patentability purssuant to
> Art. 52(2) and (3) of the EPC .. does not conform with TRIPS. 
> 
> >>
> 
> HYPOTHESIS 2:  The EPO's interpretation of "computer programs as such" as
> "computer programs as far as they are non-technical" is wrong.
> EVIDENCE FROM SCHIUMA:
> 
> <<
> Even if a distinction is made between technical and non-technical software
> programs, the provisions of Art. 52(2)(c) and (3) of the EPC ... are
> incompatible with Art 27(1) of TRIPS, since the former exclude "programs
> for computers as such" entirely, i.e. irrespective of such a distinction
> between technical and non-technical programs.
> 
> >>
> 
> HYPOTHESIS 3: The deletion of the computer programs exceptions in 52(2)
> will result in more software patenting even under the current regime of
> bent law:
> EVIDENCE FROM SCHIUMA:
> 
> <<
> The non-conformity of the provisions of the .. EPC with TRIPS in regard to
> software remains evident, for instance, from the decision
> "Computer-Related Invention/VICOM, in which one and the same technical
> constellation of facts was interpreted differently on the basis of
> different wording in the patent claims: on the one hand, a "process for
> the digital filtering of data" was regarded as a mathematical method or as
> a computer program "as such" and thus was not patentable, while at the
> same time a "procedure for the digital processing of images in the form of
> a data array" was regarded as patentable.
> 
> It appears doubtful whether such a value judgement would have been made in
> the same way if the prohibition on patents for computer programs "as
> such" contained in Art. 52(2)(c) and (3) of the EPC had not existed, since
> an improved "procedure for the digital filtering of data" (without
> restriction to the processing of images) can indeed be a technical
> contribution .. and thus be accessible to patent protection as a matter of
> principle.
> 
> >>
> 
> HYPOTHESIS: TRIPS does not take priority over European patent law:
> EVIDENCE:
> 
> <<
> The decision to classify GATT/TRIPS as community law or as international
> law continues to play a decisive role for its status in its relationship
> to German (domestic) law: if it is regarded as community law, it then
> takes priority, while it enjoys equal status if it need "only" be regarded
> as international law.
> 
> There continues to be disagreement concerning the direct applicability of
> the TRIPS provisions in the individual member states.  On this pont, the
> German legislature has assumed that TRIPS is directly applicable as a
> matter of principle (Memorandum, BT-Drucks, 12/7655 (new), at 335, 337).
> In the present case .. direct applicability can, however, be excluded
> since Art. 27(1) of TRIPS is insufiiciently clear and unconditional on the
> question of the patentability of software.
> >>
> 
> HYPOTHESIS: TRIPS does not mandate a change of the EPC
> EVIDENCE:
> 
> <<
> The European Patent Organisationis not a member of the WTO Agreement and
> thus not subject to any direct obligations deriving from GATT/TRIPS.  It
> is true that all EPC member states, with the exception of Monaco, are
> members of the WTO, but TRIPS merely imposes the obligation to adapt
> national regulations and not any international agreements.
> >>
> 
> HYPOTHESIS: A lobby withing the EPO is putting European legislatures under
> pressure to "conform to TRIPS"
> EVIDENCE:
> 
> <<
> At present, there is no specific discussion of any change to the German
> Patent Act with respect to Art. 27(1) of TRIPS.  On the other hand, the
> Standing Advisory Committee before the European Patent Office (At the
> insistence of Austria, Spain, Sweden, Switzerland and the "users of the
> system") has pointed out (at the 28th meeting in Munich on June 25-26
> 1998, cf the comment "Points for a revision of the EPC", CACEPO 2/98)
> that the provisions of Art. 52(2) of the EPC with respect to computer
> programs do not conform with Art. 27(1) of TRIPS, and should therevore be
> deleted.  
> >>
> 
> HYPOTHESIS: The EU harmonisation directive is an instrument needed to
> force the nation states to submit to WTO verdicts.
> EVIDENCE:
> 
> <<
> According to Art. 64 of TRIPS, the Understanding on the Settlement fo
> Disputes (Vereinbarung ueber Regeln und Verfahren zur BEilegung von
> Streitigkeiten) is applicable to TRIPS, with the result that a GATT Member
> can initiate dispute settlement proceedings before the WTO in order to
> reconcile the provisions of the GErman Patent Act concerning the
> patentability of software "as such" with Art. 27(1) of TRIPS.  However, at
> present it is not possible for a natural or legal person to initiate such
> proceedings before the WTO.  They can only institute domestic legal
> proceedings and persuade their government to initiate dispute settlement
> proceedings.
> 
> It would also be conceivable for an EU Member to invoke the European Court
> of Justice pursuant to Art 107 of the EC Treaty for an infringement of the
> obligation to implement EC law or secondary law by another
> Member.  Proceedings on the infringement of the treaty can also be
> initiated by the European Commission according to Art 169 of the EC
> Treaty.  However, both possibilities presuppose the competence of the
> European Community, which, according to Opinion 1/94 of the European Court
> of Justice (ECJ, Opinion 1/94, November 15, 1994, 27 IIC 503 (1996) -
> TRIPS Jurisdiction), is divided  with respect to GATT/TRIPS between the
> European Community and its member states, with the European Community
> enjoying jurisdiction in those areas in which it has applied harmonisation
> measures.  In case of patent law, competence is held by the member states,
> since here, with the exception of a number of narrowly defined areas, no
> harmonisation has (as yet) taken place.  If the European Communities
> should subsequently apply harmonisation measures (fn: The European
> Commission plans a Directive for harmonising the patentability of computer
> software inventions), the corresponding sector would fall within its
> competence.
> 
> The decision to classify GATT?TRIPS as community law or as international
> law continues to play a decisive role for its status in its relationship
> to German law: if it is regarded as community law, it then takes priority,
> while it enjoys equal stats if it need "only" be regarded as international
> law. 
> >>
> 
> Moreover interesting:
> 
> <<
> Alternatively the Preseident of the EPO has proposed to revise
> Art. 52(1)-(3) to read like Art. 27(1) of TRIPS, so that the exclusion
> list, according to Art. 52(2) and (3) of the EPC, would be completely
> deleted.  On the other hand, the EPO will revise the examination
> guidelines for software-related inventions by including the interpretation
> of Art. 52(2) and 52(3) of the EPC according to decsisions T 935/97 and T
> 1173/97.
> >>
> 
> The latter revision was indirectly announce within the decisions
> themselves:  there is a final remark saying that these decisions have a
> norm-setting effect on the future practise.
> 
> Misleading Summary:
> 
> << 
> 
> There is a binding obligation in Art. 27(1) of TRIPS to provide patent
> protection for "inventions .. in all fields of technology", whereby these
> terms must be construed autonomously on the basis of TRIPS, i.e.
> independently of national interpretation approaches.
> 
> >>
> 
> As we have read above, TRIPS 27 contains no "obligation to construe these
> terms autonomously on the basis of TRIPS".  And the German legislature
> doesn't see such an obligation in there either.
> 
> I see here an attempt invalidate all national legislation and to instead
> impose a treaty that was negotiated only by a few lawyers under the guise
> of "harmonisation of laws" as a world law, accessible and changeable only
> by an international oligarchy of lawyers.
> 
> Although TRIPS is only a pretext for them, in the long run we will have to
> fight both TRIPS and the European Community Patent and instead restore the
> sovereignty to that unit of social organisation that is capable of taking
> grassroots decisions. At the moment that is most likely the nation state.
> 
> -phm
> 
> 
> 
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