Änderungsvorschläge 2005

Wenn eine Lösung von Rechnern "gestützt" ist, wie etwa bei "computer-gestütztem Konstruieren" und "computer-gestützter Fertigung" (CAD/CAM) der Fall, richtet richtet sich der entsprechende Patentanspruch nicht auf die Software als solche sondern auf einen Vorgang im Bereich des industriellen Maschinenbaus. Ein Rechner kann einen solchen Vorang "stützen" aber nicht "implementieren". Ein Rechner alleine kann nur eine Softwarelösung "implementieren", und Software, die auf einem Rechner läuft ist nicht mehr als Software als solche und folglich keine Erfindung im Sinne des Patentrechts.

Wenn eine Lösung von Rechnern "gestützt" ist, wie etwa bei "computer-gestütztem Konstruieren" und "computer-gestützter Fertigung" (CAD/CAM) der Fall, richtet richtet sich der entsprechende Patentanspruch nicht auf die Software als solche sondern auf einen Vorgang im Bereich des industriellen Maschinenbaus. Ein Rechner kann einen solchen Vorang "stützen" aber nicht "implementieren". Ein Rechner alleine kann nur eine Softwarelösung "implementieren", und Software, die auf einem Rechner läuft ist nicht mehr als Software als solche und folglich keine Erfindung im Sinne des Patentrechts.

As long as the old term is still in use, we need to define it here as a synonym.

We have elided wordings in the Council text which are unclear and redundant and whose only purpose seems to be to suggest that the claimed invention can consist in nothing but software running on a computer.

Our proposed amendment is a simplified version of an amendment adopted in 1st reading.

The concept of "technical contribution" has pervaded the discussion about the directive and generated great confusion and therefore to some extent deserves to be clarified. While intuitively and in the subjective belief of most discutants the "technical contribution" appears to be related to the question of patentable subject matter (Art 52 EPC), the EPO used the term as a means of abolishing the subject matter test by mixing it into the non-obviousness test (Art 56 EPC) in obcure ways, which national courts and ministerial patent officials have found difficult to follow. It is thus particularly important that, as far as the written law uses this term, it is understood to be connected to the concept of "invention" (patentable subject matter) and dissociated from all other conditions of patentability.

A similar amendment that was adopted in first reading by the EP. We have added some ideas of the Council such as that of subtracting the prior art from the claimed object. If worded carefully, as we attempted, this can help provide further clarification.

It is an improved version of the Parliament's former amendment 2(c).

A discipline is normally characterised not by its domain of application but by the way in which it gains knowledge. For patent granting, what matters is where the achievement lies, not to which domain it is applied. Also, "industrial applicablity" is a requirement is a separate requirement of patentability. Patentability requirements should stand on their own, relying on each other as little as possible.

This amendments helps clarify a central term of Art 27 TRIPs which has been used in several provisions and amendments within this directive. If the term is to retain any limiting meaning at all, production of information goods can not fall within it.

We do not want innovations in the "music industry" or "legal services industry" to meet the TRIPS requirement of "industrial applicability". The word "industry" is nowadays often used in extended meanings which are not appropriate in the context of patent law.

In the tradition of patent law, "industry" refers to the primary and secondary sector, i.e. it includes agriculture. The distinction between these sectors and the tertiary (software and service) sector is economically meaningful. E.g. in the anti-trust procedings against IBM, the company was split into two along these lines.

This amendment corresponds to article 2(d) in the consolidated text of the EP’s first reading, except that we replaced "automated" with "commercially organised", so as to approximate the original meaning in the legal tradition more closely.

It should be noted that the requirement of industrial applicability in itself has very little excluding force. Most advances in the area of mathematics or business methods are applicable to industry, no matter how the term is defined.

Data processing is a branch of mathematics, a mental activity whose innovative advances lie in the area of abstraction, and whose technical aspects, if existent at all, are known and trivial. This amendment in no way affects the patentability of the computers themselves, or of any processes involved in implementing the abstract data processing machine into silicon, wood or DNA.

Strictly speaking, the amendment does not even exclude software from patentability. Rather, it forbids certain extensive interpretations of Art 27 TRIPs which have been used to circumvent Article 52 of the European Patent Convention and to reduce the freedom of the judiciary to interpret this article in meaningful ways.

This amendment corresponds to article 3 in the consolidated text of the EP’s first reading.

Moreover we delete the attribute "computer-implemented", since the above logic applies to all patentable inventions. We cannot see any advantage in creating sui generis software patent law.

This amendment makes sure that this fact does not justify the granting of a patent. This codifies both UK case law (Gale's application) and Germany’s case law (BPatG ruling in the Error Search case). As the German court found: if an improvement of efficiency in the use of computing ressources, such as time or data space, is deemed to be a technical contribution, then all computer-implemented business methods become patentable.

This amendment corresponds to article 6 in the consolidated text of the EP’s first reading, except that we have changed "computer-implemented" to "computer-aided".

The Commission purposefully did not include these so-called "program claims" in its original proposal, as allowing patent monopolies on programs on their own is hard to defend if you at the same time want to maintain that "program as such" are not patentable.

Getting rid of this Council amendment is one of the most basic requirements. In first reading, the EP rejected a similar amendment, and the replacement is part of an amendment which was adopted (article 7 paragraph 2 of the consolidated version).

This amendment is a simplified and reduced version of article 7 paragraph 3 in the consolidated text of the EP’s first reading.

This requirement makes it a little more difficult to block people from doing things you even haven't done yourself, but which are obviously possible since the computing model is perfectly defined and you always know what you can do with a computer. When you publish working source code you at least offer some real knowledge on how to solve the problem, unlike when you say in the claims language that a "processor means coupled to input output means so that they compute a function such that the result of said function when output through said output means solves the problem the user wanted to solve".

Note that this amendment does not require that the source code for all programs of the patent owner which use these features be disclosed. He only has to provide a single, simple text which describes the monopolised functionality in a programming language.

This amendment corresponds to article 7 paragraph 5 in the consolidated text of the EP’s first reading.

Article 6 of the Council only refers to the exemption provided for by the Copyright directive. This means that a software developer is allowed to find out how to make his data processing system interoperable with that of a competitor, but afterwards he cannot necessarily use his gained knowledge, since that could be covered by patents.

This amendment makes sure that patents also cannot be used to prevent interoperability. It was passed in an almost identical form by ITRE and JURI prior to the first reading (the second underlined part read "computer systems or networks"). In first reading, a more sweeping version of this amendment was passed, which appeared as Article 9 in the consolidated version.

The first underlined part reverts to the spirit of the original ITRE/JURI version of the interoperability exemption (which is more limited), which was also supported by Luxembourg and several others in the Council (but didn’t make it).