[Patents] FFII Proposal for EC Directive

[PILCH Hartmut phm@a2e.de]

We propose that the European Commission draft its planned directive on the
software patent problem along the lines of the following text.
                                      
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Directive about the invention concept of the European patent system and its
        interpretation with special regard to programs for computers
                                      
   
   Led by the understanding that the borderline between patentable and
   non-patentable objects pertains to the patent system's relations to
   the outside world and therefore requires particularly clear and
   explicit decisions at the legislative level
   
   Learning from the experience that legislative decisions such as those
   expressed in Art 52 EPC in a very brief and abstract fashion have
   given rise to misunderstandings, inconsistencies and insecurity at the
   jurisdictional level
   
   Driven by the concern that the new rules created by some organs of
   patent jurisdiction could lead to undesired social and economic
   effects
   
   we clarify the following:
   
    1. The term "programs for computers", in short "computer programs",
       is understood as it is understood by software professionals: it
       comprises the program at at all design levels from the conceptual
       plan to a binary instruction executable by a processor. Just like
       a "game", a computer program is a special subclass of "plans and
       instructions for mental activity". It is a plan and instruction, a
       process and a product at the same time.
    2. The particle "as such" in Art 52 (3) EPC is to be understood only
       from its function in a syntactic context. A "computer program with
       a technical effect" is nothing different from a computer program
       as such. However a technical invention described by means of a
       computer program can, at least at the conceptual level, be
       distinguished from the program as such. Likewise a "method for the
       production of chessboards" can be distinguished from the chess
       game as such. The particle "as such" is used for the juxtaposition
       of two overlapping but distinct categories, none of which contains
       the other.
    3. Computer Programs are not inventions in the sense of Art 52 (1).
       Chemical processes, tyre breaking processes and other technical
       processes with embedded computer programs can be inventions, as
       far as they are distinguishable from the computer program not only
       at a conceptual but also at a practical level. I.e. the solution
       of the problem must lie in a technical realm beyond the realm of
       programming, and the exclusion rights derived therefrom must be
       directed to material objects outside of the program, such as e.g.
       chemicals or automobile engines. The same applies to all other
       items of the exclusion list in Art 52 (1) EPC.
    4. A "technical" process is one that uses natural forces to directly
       cause a transformation of matter. Patent applications that contain
       both technical and non-technical features are patentable only if
       the part that is claimed to be new and inventive, i.e. the core of
       the invention, lies in the technical realm. A technical invention
       that is to be distinguishable from a computer program must embody
       a teaching on how to use natural forces to directly cause a
       transformation of matter that cannot be computationally deduced
       from prior knowledge.
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    http://swpat.ffii.org/stidi/eurili/indexen.html
    2000-12-08 SWPAT-AG des FFII