[Sheflug] Draft Computer Implemented Inventions Directive Meeting

[Richard Ibbotson <richard [at] xxxxxxxxxxxxx>]

Hi

Of general interest to anyone...

http://www.ffii.org.uk/swpat/eudir/analysis/november2002.html

Anyone coming along to the DTI session on Tuesday might like to read 
the document below.  ...

http://www.iccwbo.org/home/statements_rules/statements/2004/EU_directive_patentability_CII.asp

The bottom of the page is of interest... 
  

" ICC Policy Statement

The draft EU directive on the patentability of computer-implemented 
inventions.  Prepared by the Commission on Intellectual Property

Summary
ICC reiterates its longstanding support for a balanced European Union 
directive on the patentability of computer-implemented inventions.

In line with this objective, ICC supports the Political Agreement 
reached by the Competitiveness Council in May 2004. This agreement 
confirms existing European Patent Office practice, which has served 
European inventors and consumers well. It also incorporates a number 
of the amendments proposed by the European Parliament in its first 
reading, while avoiding the most harmful amendments, which would 
compromise innovation in Europe.

ICC therefore calls upon all governments to adopt a Common Position 
based on the Political Agreement reached in May 2004 and calls upon 
all Members of the European Parliament to support such a Common 
Position in the forthcoming Second Reading.

The Lisbon Goal is at risk
The EU Member States have agreed on the Lisbon Agenda's goal: to make 
the EU "the most competitive and dynamic knowledge-driven economy by 
2010". One of the most important tools to reach that goal is to 
maintain and increase the high level of inventiveness within all 
business sectors in the EU, while at the same time enhancing Europe's 
competitiveness and its attractiveness as a destination for foreign 
direct investment. Patent protection of inventive ideas is necessary 
in order to achieve the Lisbon goals; copyright does not protect such 
ideas.

The draft directive on patentability of computer-related inventions 
covers innovations that can be found in an overwhelming number of 
everyday products marketed by European companies. Examples of such 
products, based on modern technology and using data and information 
processing are: telecommunication systems, including mobile phones 
(Alcatel, Ericsson, Nokia and Siemens, Sony Ericsson), consumer 
electronic devices (Philips, Siemens, Thomson), integrated circuits 
(Infineon, Philips, ST Microelectronics), ABS brakes and fuel 
injection in cars (Volvo, Scania), industry robots (ABB), etc. The 
consequences of the directive will therefore not be limited to a 
narrow industry sector but will have a direct impact on many small 
and large companies involved in a wide range of business activities.

The present European patent system has served European industry well, 
giving it a much needed platform for both small and large companies 
to innovate and compete. No need has been demonstrated to change this 
system of protecting inventive ideas. If changes are contemplated, 
they must be preceded by thorough and comprehensive studies of their 
effects on all sectors of the European industry. Some of the 
amendments proposed by the European Parliament in its first reading 
would substantially change the current system - without any such 
solid basis - by introducing substantial limitations to the 
patentability of computer implemented inventions. This could 
seriously harm European companies, damage the inventive climate in 
Europe, reduce the European competitive platform and have a negative 
impact on employment in Europe.
The draft directive does not introduce new law
Contrary to what is often claimed, the draft directive does not intend 
to widen the scope of patentability by allowing patents which today 
are not permitted. Its purpose is only to codify current European 
patent law, as provided for in the European Patent Convention (EPC) 
and national patent laws and the case law of the European Patent 
Office (EPO) Board of Appeal and national courts. It would expressly 
exclude patents on "pure" business methods and non-technical 
innovations implemented in computer programs.

Opponents to the draft directive repeatedly state that the EPO has 
been granting so-called "software patents" in direct violation of the 
EPC. This is not correct. On the contrary, the case-law established 
by the EPO Board of Appeal with respect to patents on 
computer-implemented inventions is based on a careful analysis of the 
Convention.

Under the EPC, while a mathematical method as such cannot be an 
invention, a technical invention in which a mathematical method is 
applied, ( e.g. concerning image sharpness enhancement) , is 
patentable. Consequently, a technical invention, even if implemented 
by a computer program, is patentable under European patent law. This 
is the basis for current EPO case law as well as for the proposed 
directive.
Almost all EU Member States are party to the EPC, which serves as a 
model for the national patent laws on the requirements for 
patentability. Article 52 of EPC states that "patents shall be 
granted for any inventions which are susceptible of industrial 
application, which are new and which involve an inventive step". In 
the second paragraph of the article, mathematical method schemes, 
rules and methods for performing mental acts, playing games or doing 
business, and programs for computers are mentioned as examples that 
shall not be regarded as inventions. However, this must be read 
together with the third paragraph of the same article, saying that 
the exceptions just mentioned shall be excluded from patentability 
"only to the extent to which a European patent application or 
European patent relates to such subject-matter or activities as 
such."

Computer implemented inventions must not be treated separately
Patent laws should be technology neutral: patents shall be available 
for any inventions and patent rights enjoyable without discrimination 
as to the field of technology. This is one of the basic principles of 
the internationally agreed WTO TRIPs Agreement which binds the EU and 
its Member States.

This is a well founded policy. Technology specific laws are difficult 
to draft and equally difficult to change when necessary, and become 
quickly outdated as technologies evolve. Different rules for 
different inventions also makes patenting more complicated, time 
consuming and expensive, which is particularly harmful for SMEs.

Many of the amendments proposed by the Parliament in its first reading 
are in conflict with this basic principle and with the EU's TRIPS 
obligations. Consequently, the Competitiveness Council was forced to 
reject amendments aiming to exclude certain types of inventions from 
patentability. These amendments state, for instance, that 
"processing, handling and presentation of information do not belong 
to a technical field, even where technical devices are employed for 
such purposes" (see Parliament's Article 2b), that " data processing 
is not considered to be a field of technology within the meaning of 
patent law", and that "innovations in the field of data processing 
are not considered to be inventions within the meaning of patent 
law" (see Parliament's Article 3a)

These amendments attempt to define certain inventions as not being 
technical and thereby unpatentable. However, one cannot define an 
apple to be other than a fruit. It would defy common sense and the 
EU's legal obligations to define clearly technical things as 
non-technical. For example, Intel's Pentium integrated circuits are 
clearly technical, while only processing information and data.

Certain amendments would seriously harm inventive enterprises
Some of the amendments proposed by the European Parliament would have 
far-reaching effects on the possibilities to protect innovations. The 
most notable are the following:

    * The amendments mentioned above (Parliament' Articles 2b and 3 a) 
which exclude inventions relating to data processing etc from the 
patentable field, would make it impossible to obtain patents for 
innovations relating to engine control systems in cars, 
telecommunication systems, chemical process technology, control 
systems for industry robots, etc.

    * Parliament's Article 6a would make it impossible for companies 
that develop new solutions based on data communication to enforce 
patents granted for those solutions. The proposed rule would thus 
make patents for many inventions worthless, such as Bluetooth or 
digital imaging.

    * The proposed restrictions as regards allowed types of patent 
claims (Parliament's Article 5) would make it much more difficult to 
obtain truly enforceable patents.

These proposals and others that the Council did not adopt, would 
seriously harm the possibilities to protect innovations in Europe.

ICC therefore urges the Member States and the European Parliament not 
to pursue these amendments, but to accept the Political Agreement 
reached by the Competitiveness Council in May 2004. This agreement 
incorporates a number of the amendments proposed by the European 
Parliament in its first reading, while avoiding the amendments which 
would compromise innovation.

Document n° 450/992
9 November 2004  "



-- 
Richard

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