Fake Limits on Patentability in the Council Proposal

How a directive can mean the opposite of what it says

We try to produce a short overview of the deceptive tricks in the Council's software patent proposal of 18 May 2004.

The most frequently used rhetorical trick of the Council paper works as follows:

[A] is not patentable, unless [condition B] is met.

where, upon close scrutiny, it turns out that condition B is always met.

Due to constraints of time and space, we pick out only a few most often discussed provisions from the Council text to illustrate this point. More can be found via the analysis page.

Article 5(2)

The Text:

A claim to a computer program, either on its own or on a carrier, shall not be allowed unless that program would, when loaded and executed in a computer, programmed computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1.

Analysis:

The “unless” condition is always true. Any computer program can be claimed as a “product or process”, and in such cases the patent claim can also be directed to the program as such, “either on its own or on a carrier”.

To put it more precisely, a claim of the form “program, characterised by that it [does certain things]” will be grantable, and this claim will cover an infinite number of individually developed copyrighted programs.

The program according to this provision needn't even be new or inventive. It can be a conventional description of a new process. Once somebody has invented a new chemical process, he can claim the program logic that describes it (e.g. A+B=C), and he can forbid the publication of any program that uses this logic as well as its use for any purposes, including simulation on a general-purpose computer.

Article 4a(1)

The Text:

A computer program as such cannot constitute a patentable invention.

Analysis:

This provision is in direct contradiction with Art 5(2).

The naive reader will take the article to mean that the work of a programmer can not fall afoul of patents, because programs as such are not covered by patent claims. In fact the German minister of justice, Brigitte Zypries, seemed to believe in this interpretation, when she used it in an attempt to dispel the fears of programmers in a chat ten days after the Council session.

The expert reader understands that this sentence means the opposite of what Zypries and other government ministers believe it means. Art 52 EPC is not reaffirmed but rendered meaningless by this clause.

Computer programs can not be claimable (Art 5(2)) and unpatentable (Art 4A1) at the same time. The puzzled law interpreter has to look for a way out of the contradiction, and he finds it in the following clause.

Article 4a(2)

The Text:

A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs, whether expressed as source code, as object code or in any other form, which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable.
Analysis:

Here Bolkestein inserted the redundant subclause “whether expressed as source code, as object code or in any other form”. This clause is meaningless, because no patent applicant would ever want to claim a program narrowly in terms of the individual “code” of one programmer. Such a narrow claim would not be worth the patent registration fee, and it would not arouse any protests from the software community. The only reason why Bolkestein inserted this subclause was to suggest an interpretation for clause A1, which in turn interprets Art 52 EPC. According to this interpretation, Art 52 was meant only to exclude certain kinds of imaginary narrow claims which nobody has every applied for and against which nobody has ever raised concerns. This interpretation is in contradiction with the clear meaning of Art 52 EPC as it has generally been understood by the patent courts, and it is inadmissible under the normal methodology of interpretation of laws and treaties.

The wording “normal physical interaction between a program and the computer” means about as much as “normal physical interaction between a recipe and the cook”: nothing. It is a magic formula whose usage can be inferred only from recent decisions of the EPO, in which it served to justify the granting of patents on geometrical calculation rules to IBM. In the present case, according to the EPO, the “further technical effect beyond …” consisted in the economisation of space on a computer screen. Two years later, the EPO itself pointed out that this construction is confusing but was needed for political purposes:

This scheme makes no mention of the “further technical effect” discussed in T1173/97. There is no need to consider this concept in examination, and it is preferred not to do so for the following reasons: firstly, it is confusing to both examiners and applicants; secondly, the only apparent reason for distinguishing “technical effect” from “further technical effect” in the decision was because of the presence of “programs for computers” in the list of exclusions under Article 52(2) EPC. If, as is to be anticipated, this element is dropped from the list by the Diplomatic Conference, there will no longer be any basis for such a distinction. It is to be inferred that the BoA would have preferred to be able to say that no computer-implemented invention is excluded from patentability by the provisions of Articles 52(2) and (3) EPC.

It should be noted that the Council Working group rejects the Parliament's Art 4 B, which would have helped to attribute a more restrictive meaning to the EPO wording, based on a recent German court decision which held that economisation of computing ressources does not constitute a “technical contribution”, because otherwise practically all computer-implemented business methods would become patentable subject matter. It is clear that the Council working group wants to make “computer-implemented” algorithms and business methods patentable in accordance with recent EPO practise.


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