== Older 10 CC project: Venice letter
Dear Signatory of the Venice San Servolo Resolution of October 2005,
The observed divergence of European court rulings has a history. As you are well aware, the EPO guidelines made clear in 1978[1]:
- "If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims."
Guidelines and practice have changed since then, today, less clear, TBA argues[2] that:
- "The claim category of a computer-implemented method is distinguished from that of a computer program. Even though a method, in particular a method of operating a computer, may be put into practice with the help of a computer program, a claim relating to such a method does not claim a computer program in the category of a computer program"
The consequence is that today, no programmer can tell whether his work can be claimed by someone else but him, or not.
Similarly, in 1976 the invention concept was clearly understood and even defined by German BGH[3]:
- "a patentable invention is a teaching for plan-conformant action utilising controllable forces of nature for achieving a causally overseeable result."
But in 2004, TBA makes trivial the notion of technicity[4]:
- "The Board is aware that its comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper."
In practice, today a computer user might feel that the act of turning on the computer at work is considered so technical she is at risk of infringing a patent by doing it!
For sure, you could provide us with even more examples of where TBA verdicts lack clarity than we could give you, and certainly you are all to well familiar with the practical consequences unclear rules have on public behaviour and expectations.
Even if the change in practice and interpretation could have been justified by pressing economic rationales, the complete deconstruction of core European patent law concepts by means of case law by a single board of appeal is, to say the least, unfortunate. Indeed there was, and still is, a need for a software patents directive.
We would like to bring to your attention the core of our work with the members of the European Parliament last year. We believe the compromise[5] finally put before the plenary on 6 July had majority support, but the majority for rejection of the directive as a whole was even larger. The rejection amendment was voted first of all amendments.
We are boldly calling the core of our work the Ten Core Clarifications because we do not believe they are going beyond the EPC. The principles are basically the same as those used in the famous anti-lock-braking system (ABS) decision[6] of the BGH in 1980, and they are approximately the same as other national patent courts have been using for decades.
- Definition of "Computer-Aided Invention":
- A "Computer-aided invention"[, also inappropriately called "computer-implemented invention",] is an invention in the sense of patent law the performance of which involves the use of a programmable apparatus.
- Definition of "computer program":
- A "computer" is a realisation of an abstract machine consisting of entities such as input/output, processor, memory, storage space and interfaces for information exchange with external systems and human users. "Data processing" is calculation with abstract component entities of computers. A "computer program" is a solution of a problem by means of data processing which can, as soon as it has been correctly described in a suitable language, be executed by a computer.
- Objects of Product and Process Claims:
- A computer-aided invention may be claimed as a product, that is as a programmed apparatus, or as a process carried out by such an apparatus.
- Exclusion of Program Claims:
- A patent claim to a computer program, either on its own or on a carrier, shall not be allowed.
- Freedom of Publication:
- The publication or distribution of information can never constitute a patent infringement.
- Negative Definition of "Field of Technology":
- Data processing is not a field of technology.
- Positive Definition of "Technical" and "Field of Technology":
- "Technology" is applied natural science. A field of technology is
- a discipline of applied science in which knowledge is gained by experimentation with controllable forces of nature. "Technical" means "belonging to a field of technology".
- "Technology" is applied natural science. A field of technology is
- Negative Definition of "Contribution":
- An improvement in data processing efficiency is not a technical contribution.
- Positive Definition of "Contribution" and "Invention":
- An "invention" is a contribution to the state of the art in a field of technology. The contribution is the set of features by which the scope of the patent claim as a whole is presumed to differ from the prior art. The contribution must be a technical one, i.e. it must comprise technical features and belong to a field of technology. Without a technical contribution, there is no patentable subject matter and no invention. The technical contribution must fulfill the conditions for patentability. In particular, the technical contribution must be novel and not obvious to a person skilled in the art.
- Freedom of Interoperation:
- Wherever the use of a patented solution is necessary in order to ensure interoperability, such use is not considered to be a patent infringement.
Our constituency consists of European software companies. Many of them joined in a call to the European Parliament under the following declaration:
- Our enterprise is worried about plans to legalise patents on software solutions ("computer-implemented inventions"). We rely on software copyright. We need to be sure that we own what we write. We need to be sure that we can publish and distribute our own programs. We need to be sure that, as long as we respect the rules of copyright, we can run any software on any office or network computer. We urge legislators to confine the patent system strictly to the limits of applied natural science. In principle, only knowledge which had to be obtained through costly experiments with forces of nature should be eligible for the broad, slow and expensive monopoly protection which the patent system offers.
We believe the Ten Core Clarifications would have provided the tools necessary for European courts to meet these declared needs and the tools to uphold the principle of separation of copyright and patent law as explicitly expressed in Dispositionsprogramm[3]:
- "The system of German industrial property and copyright protection is however founded upon the basic assumption that for specific kinds of mental achievements different specially adapted protection regulations are in force, and that overlappings between these different protection rights need to be excluded as far as possible."
But maybe they can still serve a purpose in the same respect. In any case the problem of "overlappings" between copyright and patent protection is actually addressed in the upcoming version of the GNU General Public Licence, where all patent claims interfering with the rights the copyright licence gives users of the program are permanently waived.
As we see it, the success of the GNU General Public Licence, as well as other copyright licenses, gives a pressing economic rationale, if there ever was one, not to let the patent system keep threading down the "forbidden path" prophetically described in Dispositionsprogramm.
Best regards,
FFII
[1] http://swpat.ffii.org/papers/epo-gl78/index.en.html [2] http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf [3] http://swpat.ffii.org/papers/bgh-dispo76/index.en.html [4] http://legal.european-patent-office.org/dg3/biblio/t030258ex1.htm [5] 21 Compromise amendments [6] anti-lock-braking system (ABS)