debugging

[Erik Josefsson <erikjosefsson@telia.com>]

Hi,

Anyone interested in debugging this text?

I think this is the latest attempt from the rapporteur to get a grip on
the JURI members minds that are not dedicated to the swpat-issue.
(there are other areas of law ;-)

I also think this document will be read by many JURI members, that is
why I think it perhaps could be a good point of departure when speaking
to a MEP about the upcoming vote in JURI.

//Erik

> ===================================================================
> Note From the European Parliament's Rapporteur, Arlene McCarthy MEP   
>  
>              The Proposal for a Directive on
>       the Patentability of Computer-Implemented Inventions.
> 
> 
> What is the current situation?
> -----------------------------
> The patenting of computer-implemented inventions is not a new
> phenomenon: patents involving the use of software have been applied
> for and granted since the earliest days of the European Patent Office
> (EPO).
> 
> Applications are on the increase not only to the EPO but also to
> national patent offices in member states. Fifteen per cent of all
> applications for patents relate to computer-implemented inventions.
> Out of over 110,000 applications received at the EPO in 2001, 16,000
> will have dealt with inventions in computer-implemented technologies.
> 
> Concern has been raised that with certain EPO and national court
> rulings, if matters are left as they stand, Europe may be drifting
> towards extending the scope of patentability to inventions which
> traditionally would not have been patentable.
> 
> If the EU does not take the step to develop its competence with regard
> to computer-implemented inventions, then the EPO and its boards of
> appeal will continue to be the main arbitrators of the law. This will
> side step the democratic scrutiny of the EU.
> 
> 
> What are the aims of the proposal?
> ---------------------------------
> To harmonise and clarify the law relating to patentability of
> computer-implemented inventions.
> 
> To stop expansion of the patents system, and stem the current drift
> towards broadening the scope of innovation in software that can be
> patented.
> 
> To ensure that patents for computer-implemented inventions are
> granted on the same footing across the European Union and that
> national courts can deal with contested patents on the basis of
> uniform principles and within an EU legal framework.
> 
> To create an EU directive which has the advantage of providing a high
> degree of legal certainty and uniformity across the Union. A body of
> authoritative, binding European case law will also be able to build
> up, since the Court of Justice will have jurisdiction to give
> preliminary rulings allowing accountability and enhanced transparency
> of decision making.
> 
> 
> How important is software to the EU economy?
> -------------------------------------------
> Software development is a major European industry: in 1998 the value
> of the EU software market was EUR 39 billion.
> 
> Computer programmes are now used almost everywhere, for example for
> operating and controlling washing machines, lifts, automotive gear
> boxes and video recorders, as well as in the core areas of information
> technology, digital data processing, data recognition, representation
> and storage.
> 
> Inventions engendered as a result of R&D in the field of software are
> important to the EU economy.
> 
> At a time when many of our traditional industries are migrating to
> Asia, and when we Europeans are having to rely on inventiveness to
> earn our living, it is important for us to have the revenue secured by
> patents and the licensing out of ideas.
> 
> 
> What sort of programmes will the Directive cover?
> ------------------------------------------------
> Thousands of patents have been granted by the European Patent Office
> and by Member States' national offices for technical inventions which
> involve computer programmes: currently as many as 15% of patents
> granted involve software.
> 
> During this time all sectors of the software industry, including the
> open source movement, have developed strongly. Patents are available
> only for programmes that offer a new technical solution.
> 
> 
> What sort of programmes will be excluded?
> ----------------------------------------
> Programmes which produce an aesthetic outcome, components of
> programmes(code sequences) which of themselves do not deliver any
> technical solution, algorithms and underlying programming ideas will
> not, as now, be patentable.
> 
> 
> Programmes which underpin non-technical inventions will also not be
> patentable, in particular those concerned with non-technical business
> methods (such as"reverse auction" arrangements) along with the methods
> themselves. Although these are widely patented in the United States,
> in Europe it has been shown that there to be no case for such
> extension of patents in Europe.
> 
> The EU directive should therefore provide a restrictive statement of
> the law. Software programmes that produce merely an aesthetic outcome,
> a component of programmes (code sequences) which themselves do not
> offer a technical solution, algorithms, underlying programming ideas
> and programmes that underpin non-technical inventions, should not be
> patentable.
> 
> 
> What would the situation be without the EU directive?
> ----------------------------------------------------
> As current law is not clear, uncertainty and lack of transparency
> would remain. This uncertainty is a brake on growth in the industry,
> and is allowing the scope of what is patentable to expand, contrary to
> wishes expressed throughout the EU.
> 
> Most patents in Europe are granted by the
> European Patent Office (EPO) who, facing well-drafted applications and
> the need to offer applicants the benefit of the doubt, are
> contributing to a slow but discernible drift towards wider patenting.
> Failure to adopt this directive will allow this to continue and will
> deny the patent authorities in Europe a clearer platform on which to
> operate. Failure to adopt will also mean that the EPO may act by
> itself, thus side-stepping the debate and democratic scrutiny of the
> EU route.
> 
> 
> With regards to calls for abolishing, within the EU, all patents on
> computer-implemented inventions, EU companies would be at a severe
> disadvantage in the global market place if they were not able to apply
> for a patent over their invention.
> 
> 
> What international agreements and conventions need to be taken into
> account?
> -------------------------------------------------------------------
> The EU has obligations under international agreements and conventions
> that deal with patenting of computer-implemented inventions. Two such
> obligations one must keep in mind are the European Patent Convention
> (EPC) and the Trade-Related Aspects of Intellectual Property Rights
> (TRIPS).
> 
> Under Article 52(1)-(3) of the EPC, and hence under national law, all
> patentable inventions must be novel, involve an inventive step and be
> capable of industrial application.
> 
> Additionally, Article 27 of the TRIPs agreements states;
> "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. 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 order 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."
> 
> 
> How do patent and copyright protection differ?
> ---------------------------------------------
> Copyright and Patents are two types of rights that compliment each
> another whilst having different functions and scope.
> 
> A patent protects an invention and copyright protects the particular
> expression of a computer programme, ie the actual lines of code
> written by a programmer.
> 
> Copyright gives the right to prohibit the copying or commercialisation
> of that code as an intellectual creation, but does not protect the
> ideas underlying software, what the software does within a machine or
> how a machine, under software control, interacts with its environment.
> 
> 
> What are the objectives of the report?
> -------------------------------------
> There is a need to ensure that patents for computer-implemented
> inventions are granted on the same footing across the European Union
> and that national courts can deal with contested patents on the basis
> of uniform principles and within an EU legal framework.
> 
> An EU directive should not allow the extension of patentability, but
> neither should it exclude patent protection altogether. Small software
> developers should not have to face a minefield of poorly granted
> patents for obscure or obvious patents.
> 
> The directive must allow open source software to flourish. Indeed many
> large corporations rely on the inventiveness of small business. They
> too must be able to turn their creativity into returns on their
> investments. Small companies and open source software developers
> should be able to exploit their inventiveness. The report will include
> a review clause to ensure that the European Commission monitors and
> reports on the impact of the EU directive for SMEs and software
> developers.
> 
> With Europe having no powers to prevent a gradual drift towards the
> patentability of business methods as witnessed in the US, software
> developers only recourse then would be to bring proceedings in
> national courts which would only leave in place the present fragmented
> and uncertain environment for business and industry.
> 
> http://swpat.ffii.org/events/2003/europarl/05/contrib/amccarthy/amccarthy030503.pdf