[Patents] regulation draft proposal: revision

[PILCH Hartmut phm@a2e.de]

The proposal

        http://swpat.ffii.org/stidi/eurili/

adopted by the Eurolinux Consultation paper has undergone a further slight
revision which makes especially point 2 better understandable at first
glance.


http://swpat.ffii.org/stidi/eurili/indexen.html

   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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Regulation about the invention concept of the European patent system and its
        interpretation with special regard to programs for computers
                                      
   Led by the understanding that drawing the borderline between
   patentable and non-patentable objects requires particularly clear and
   explicit decisions at the legislative level
   
   impressed by the experience that Art 52 EPC has left room for
   misunderstandings and inconsistencies at the jurisdictional level
   
   concerned by the prospect that new rules created by various lawcourts
   could increasingly impede knowlege diffusion and innovation in the
   information society
   
   we clarify the following:
   
    1. The term "programs for computers", in short "computer programs"
       refers to the program at all design levels from the conceptual
       plan to an instruction executable by a human or by a processor. A
       computer program is a plan and an instruction, a literary work and
       a virtual machine, an interface and an implementation, problem and
       a solution, a process and a product, all in one.
    2. A technical invention described by means of a computer program
       can, at a conceptual level, be distinguished from the program as
       such. Likewise a method for producing chessboards can be
       distinguished from the chess game as such. The particle "as such"
       in Art 52 (3) EPC is to be understood only from its syntactic
       function in the above sentences: it serves to differentiate
       between two mutually independent categories by which a potentially
       patentable object could be described. A "computer program with a
       further technical effect" belongs to the category of computer
       programs and hence also of "computer programs as such", whatever
       that may mean in the absence of a proper syntactic context.
    3. Computer Programs are not inventions in the sense of European
       patent law. Chemical processes, tyre braking processes and other
       technical processes controlled by 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 problem and the solution must lie in a technical realm
       outside of the program, 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
       categories of non-patentable objects listed in Art 52 (2) EPC.
    4. A "technical" process is one that uses natural forces to directly
       cause a transformation of matter. Objects that contain both
       technical and non-technical features are inventions 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 process
       controlled by a computer program on known hardware is an invention
       if and only if it uses natural forces in a new way to directly
       cause a success in production of material goods that could not
       have been predicted by mere computation based on prior knowledge.
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