[Fwd: "Computer Implemented inventions" and TRIPS]

[<ehj@cleosan.com>]

A mail from Christian Beauprez was forwarded to me with an interesting
analysis of c.i.i. and TRIPs relations.

I forward some excerpts.

------ message ------
As someone who studied Law at the University of Kent and programming
for 4 years (self taught) I have observed the debate on the status of
computer implemented inventions with great interest. Of particular note
to me was the implication of the relevance of the EU's obligations under
the TRIPS treaty (Article 5) often quoted by "computer implemented
inventions" enthusiasts,
"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. "

And this is apparently why the EU has to consider "computer implemented
inventions" patents.

The European Patent office have stated in their case law under the
"computer implemented inventions" chapter ,In T 1173/97 (OJ 1999, 609)
and T 935/97

"Programs for computers could be considered as patentable inventions if
they have a technical character."

At the same time however both views ignore very specific provisions for
"computer programs" under the WTO (TRIPS) treaty that bound all signed
"European Communities" members although apparently not the EPC (thus not
the EPO directly) according to their claims, this is possibly how it was
overlooked. Article 10 of said treaty clearly states:

  a.. "Computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention (1971)."

This is the strange thing you see, the statement doesn't seem to mean
that much on first glance. It is only when reading it closely that one
realises that it does not simply say that "computer programs are
automatically copyrighted under the Berne Convention",

it specifies they "shall be protected as literary works".

Literary works cannot be patented because they are not inventions.
Indeed if literary works could be patented one would have to concede
that books, screenplays, and music could be patented as well although
according to my research there is no provision for this in law. We would
also have to apply patent laws to these areas since we are not allowed,
apparently under article 5 to restrict on the basis of the field of
technology .

Because publishing takes place on a non-material medium does not mean
that we can apply concepts to software publishing or web publishing that
we would not apply to any other form of "literary works". If we did, we
could not then say that we were protecting them correctly under the
criteria laid out explicitly in the TRIPS treaty.

I wanted to make sure that my interpretation was the correct one, so I
looked in the overview notes of the TRIPS website. What I found further
confirmed my interpretation,

"This provision confirms that computer programs must be protected under
copyright and that those provisions of the Berne Convention that apply
to literary works shall be applied also to them. It confirms further,
that the form in which a program is, whether in source or object code,
does not affect the protection. The obligation to protect computer
programs as literary works means e.g. that only those limitations that
are applicable to literary works may be applied to computer programs."

Therefore not only would it be untrue to say that the WTO (TRIPS) treaty
requires the EU to treat software as a patentable invention as opposed
to a literary work . Quite the opposite, under this treaty, any
signatory who does not protect programs "as literary works" could be
said to be in breach under WTO rules. Patenting of computer programs of
any description could therefore be said to be in violation of this
treaty, because it would mean no longer protecting computer programs as
"literary works" but as "inventions" and they cannot  be both.

This is a fundamental point that to my knowledge has been overlooked by
various patent offices, and just about everyone in the debate. I do hope
that none of the proposed laws for software, computer programs or
"computer implemented inventions" will make us liable for trade
sanctions under explicit WTO obligations. Please pass my discovery
around as you see fit.

------end message-----

Dear Christian Beauprez, as you have invited to a discussion on this
topic, I hope you find it appropriate I do so on this list.

Kind regards.

Erik Josefsson