| amendment | |
| DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the patentability of computerimplemented invent ions DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the patentability of computer-controlled inventions | DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the patentability of computerimplemented invent ions DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the patentability of computer-controlled inventions |
| justification | |
| The term "implemented" is misleading here, as it could give the impression that an invention can be wholly realised by a mere computer, which would mean that software could be patentable. As both the Commission and the Council have come out against the patentability of software, the scope of the directive needs to be defined so as to exclude this eventuality. What the directive should therefore cover is the patenting of inventive material devices which controlled by software. | |
| amendment | |
| The realisation of the internal market implies the elimination of restrictions to free circulation and of distortions in competition, while creating an environment which is favourable to innovation and investment. In this context the protection of inventions by means of patents is an essential element for the success of the internal market. Effective, transparent and harmonised protection of computerimplemented inventions throughout the Member States is essential in order to maintain and encourage investment in this field. | The realisation of the internal market implies the elimination of restrictions to free circulation and of unjustified distortions in competition, while creating an environment which is favourable to innovation and investment. In this context the protection of inventions by means of patents is one of the elements contributing to the success of the internal market. Appropriate effective, transparent and harmonised protection of computer-controlled inventions throughout the Member States is essential in order to maintain and encourage investment in all technical fields involving the use of information technology. |
| justification | |
| Distortions in competition are harmful only when they are unjustified. States may, within their competencies, make use of these, which is something that the directive cannot prejudge. The directive covers the patentability of technical inventions controlled by information technology. | |
| amendment | |
| Differences exist in the protection of computer-implemented inventions offered by the administrative practices and the case law of the different Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market. | Differences exist in the protection of computer-controlled inventions offered by the administrative practices and the case law of the different Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market. |
| justification | |
| To be consistent with Article 1. | |
| amendment | |
| Therefore, the legal rules governing the patentability of computer-implemented invent ions should be harmonised so as to ensure that the resulting legal certainty and the level of requirements demanded for patentability enable innovative enterprises to derive the maximum advantage from their inventive process and provide an incentive for investment and innovation. Legal certainty will also be secured by the fact that, in case of doubt as to the interpretation of this Directive, national courts may, and national courts of last instance must, seek a ruling from the Court of Justice. | Therefore, the legal rules governing the patentability of computer-controlled invent ions should be harmonised so as to ensure that the resulting legal certainty and the level of requirements demanded for patentability enable innovative enterprises to derive the maximum advantage from their invent ive process and provide an incentive for investment and innovation. Legal certainty will also be secured by the fact that, in case of doubt as to the interpretation of this Directive, national courts may, and national courts of last instance must, seek a ruling from the Court of Justice. |
| justification | |
| Distortions in competition are harmful only when they are unjustified. States may, within their competencies, make use of these, which is something that the directive cannot prejudge. The directive covers the patentability of technical inventions controlled by information technology. | |
| amendment | |
| The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) . Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computerimplemented inventions. | The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-controlled inventions, without prejudice however to the legitimate interests of software authors as regards exploitation of their work, as stipulated by Article 13 of TRIPS, since computer programs are protected under copyright pursuant to Article 10 of this agreement. |
| justification | |
| amendment | |
| Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 (European Patent Convention) and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception, however, applies and is justified only to the extent that a patent application or patent relates to the above subject-matter or activities as such, because the said subject-matter and activities as such do not belong to a field of technology.) | Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 (European Patent Convention) and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception applies because the said subject matter and activities do not belong to a field of technology. |
| justification | |
| Computer programmes are not inventions within the meaning of patent law, because software is not a field of technology. | |
| amendment | |
| The aim of this Directive is to prevent different interpretations of the provisions of the European Patent Convention concerning the limits to patentability. The consequent legal certainty should help to foster a climate conducive to investment and innovation in the field of software. | The aim of this Directive is to prevent different interpretations of the provisions of the European Patent Convention concerning the limits to patentability. The consequent legal certainty should help to foster a climate conducive to investment and innovation in fields of technology and in the field of software. |
| justification | |
| The aim of this directive is not to legislate on software patentability but on the patentability of computer-controlled inventions. | |
| amendment | |
| Patent protection allows innovators to benefit from their creativity. Patent rights protect innovation in the interests of society as a whole and should not be used in a manner which is anti-competitive. | Patent protection may allow inventors to benefit from their creativity. Patent rights protect innovation in the interests of society as a whole and should not be used in a manner which is anti-competitive or excessively detrimental to the innovation derived therefrom. |
| justification | |
| Patents are not the only way of enabling innovators to benefit from their creations. Restrictions on the freedom of enterprise imposed by the patent system must be taken into account in assessing the relevance of the patent system as regards new potential areas of application. | |
| amendment | |
| In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright. | In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright, because they are algorithms which are comparable to mathematical methods or methods of presenting information. |
| justification | |
| Programme design principles cannot be patentable as they are comparable to mathematical proofs. | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to the field of technology. | In order for any innovation to be considered as patentable it should have a technical character, and thus belong to a field of technology. It must also be capable of industrial application, be new and involve an inventive step. |
| justification | |
| Reminder of the conditions for patentability. | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | It is a condition for inventions in general that, in order to involve an inventive step, they should show a significant difference between the overall technical features in the patent claim and the state of the art. |
| justification | |
| This definition of an inventive step is tautological, as any technical contribution already involves an inventive step. The initial wording creates confusion between the criteria for technical expertise and inventiveness. If there is no technical expertise, a patent cannot be granted, regardless of any inventive criterion. Otherwise an invention would only need to be new in order to pass the inventiveness test, which could lead to a serious decline in the quality of patents granted and result in patent offices being overwhelmed by patent applications for trivial inventions. | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation which does not make a technical contribution to the state of the art is not an invention within the meaning of patent law. |
| justification | |
| For the purposes of patent law, inventions must entail a technical contribution. | |
| amendment | |
| The mere implementation of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method, data processing method or other method, in which the only contribution to the state of the art is nontechnical, cannot constitute a patentable invention. | Accordingly, whilst computer-controlled inventions belong to a field of technology, because their technical contribution lies outside the software that controls them, implementation on an apparatus such as a computer of an otherwise unpatentable method such as a business method, data processing method or other method, in which the only contribution to the state of the art is non-technical, cannot under any circumstances be considered a technical contribution. Accordingly, an implementation of this kind can under no circumstances constitute a patentable invention. |
| justification | |
| The initial wording is open to misunderstanding, since it implies that there could be a contribution to the state of the art that is not technical. The new wording draws a distinction between what is technical and what is not. | |
| amendment | |
| Si la contribution à l'état de la technique porte uniquement sur un objet non brevetable, il ne peut y avoir invention brevetable, indépendamment de la façon dont l'objet est présenté dans les revendications. Ainsi, l'exigence d'une contribution technique ne peut être contournée simplement en spécifiant des moyens techniques dans les revendications du brevet. | Si la contribution à l'état de l'art porte uniquement sur un objet non brevetable, il ne peut y avoir invention brevetable, indépendamment de la façon dont l'objet est présenté dans les revendications. Ainsi, l'exigence d'une contribution technique ne peut être contournée uniquement en spécifiant des moyens techniques dans la revendication de brevet. |
| justification | |
| Il ne peut y avoir de contribution à l'état de la technique provenant d'un objet non brevetable parce que non technique. On peut en revanche parler d'état de l'art pour les domaines non techniques. | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Thus, an algorithm or computer program are inherently non-technical and cannot constitute a technical invention. Nonetheless, a technical procedure controlled by a computer programme may be patentable, if the process has characteristics which make it a technical contribution, besides the normal interaction between the program and the computer. However, any patent granted for such a technical process may not establish a monopoly on the algorithm or the program itself, as programs as such cannot be patentable, as stated in particular in Article 52(2)(c) of the European Patent Convention. |
| justification | |
| The initial wording is unhelpful as it fails to stipulate that the method in question must be a technical process. It should not be possible to draw the conclusion that methods other than technical methods can be patentable. | |
| amendment | |
| Methods for processing data represented in digital form are by their very nature algorithms and are therefore inherently non-technical. However, if information from the physical world is not captured in order to be represented digitally, a physical process for processing such information in hardware could have a technical character. | |
| justification | |
| This definition illustrates the nature of digital data-processing performed by computer programmes, which may in no case be patented. It also makes it possible to maintain the scope for patenting inventive technical processes for which the nature of the signals used is significant as regards the desired result: for example, electrical voltage to power an engine; pressure changes to power a hydraulic piston, etc, since what matters in these cases is the result of controllable physical interactions not the processing of information regardless of the physical carrier used. | |
| amendment | |
| The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-implemented inventions should be claimed at least with reference to either a product such as a programmed apparatus, or to a process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement. | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-controlled inventions should be claimed solely with reference to either a product such as a programmed apparatus, or to a technical process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or technical process, such use will not constitute patent infringement. |
| justification | |
| Software on a carrier cannot be patentable. | |
| amendment | |
| The legal protection of computer-implemented inventions does not necessitate the creation of a separate body of law in place of the rules of national patent law. The rules of national patent law remain the essential basis for the legal protection of computer-implemented invent ions. This Directive simply clarifies the present legal position with a view to securing legal certainty, transparency, and clarity o f the law and avoiding any drift towards the patentability of unpatentable methods such as obvious or non-technical procedures and business methods. | The legal protection of computer-controlled inventions does not necessitate the creation of a separate body of law in place of the rules of national patent law. The rules of national patent law remain the essential basis for the legal protection of computer-controlled inventions. This Directive simply clarifies the present legal position with a view to securing legal certainty, transparency, and clarity of the legislation and avoiding any drift towards the patentability of unpatentable methods in particular inherently non-technical methods such as algorithms, software, data processing methods or educational or business methods. |
| justification | |
| Correcting the terminology. | |
| amendment | |
| This Directive should be limited to laying down certain principles as they apply to the patentability of such inventions, such principles being intended in particular to ensure that inventions which belong to a field of technology and make a technical contribution are susceptible of protection, and conversely to ensure that those inventions which do not make a technical contribution are not susceptible of protection. | |
| justification | |
| The Commission suggests that there may be such a thing as non-technical inventions and that the legislator should limit himself to a task of rubberstamping decisions taken by administrative and judiciary bodies. Since the amendment only repeats errors that were already voiced elsewhere, deletion is a good choice. | |
| amendment | |
| The competitive position of Communit y industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-implemented invent ions are eliminated and the legal situation is transparent. With the present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the Community, the importance of intellectual property protection and in particular patent protection is self-evident. | The competitive position of Community industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-controlled inventions are eliminated and the legal situation is transparent. The present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the Community, as well as the requirements for sustainable and balanced development, are factors to be taken into account when determining an appropriate level of intellectual property protection and in particular patent protection for technical inventions and copyright protection for software. The level of this protection, as well as the monopolistic effects it might create should be determined in a manner that will not prejudice the dynamics of competition and cross-fertilisation which are the key to the development of innovative small and medium-sized enterprises in the European Union with easy market access, which will serve to ensure the Community's future competitiveness. |
| justification | |
| Recalling the Lisbon objectives and the methods needing to be applied in this connection. | |
| amendment | |
| The rights conferred by patents granted for inventions within the scope of this Directive should not affect acts permitted under Articles 5 and 6 of Direct ive 91/250/EEC, in particular under the provisions thereof in respect of decompilation and interoperability. In particular, acts which, under Articles 5 and 6 of Directive 91/250/EEC, do not require authorisation of the rightholder with respect to the rightholder's copyrights in or pertaining to a computer program, and which, but for those Articles, would require such authorisation, should not require authorisation of the rightholder with respect to the rightholder's patent rights in or pertaining to the computer program. | The rights conferred by patents granted for inventions within the scope of this Directive should not affect acts permitted under Articles 5 and 6 of Direct ive 91/250/EEC, in particular under the provisions thereof in respect of decompilation and interoperability. In particular, acts which, under Articles 5 and 6 of Directive 91/250/EEC, do not require authorisation of the rightholder with respect to the rightholder's copyrights in or pertaining to a computer program, and which, but for those Articles, would require such authorisation, should not require authorisation of the rightholder with respect to the rightholder's patent rights in or pertaining to the computer program. Furthermore, wherever the use of a patented technique is needed for the conversion of conventions used in two different computer systems or networks so as to allow communication and exchange of data between them, such use should not be considered to be a patent infringement. |
| justification | |
| To ensure that interoperability can be maintained. | |
| amendment | |
| Since the objective of this Directive, namely to harmonise national rules on the patentabilit y of computer-implemented inventions, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective. | Since the objective of this Directive, namely to harmonise national rules on the patentabilit y of computer-controlled inventions, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective. |
| justification | |
| Consistency with Article 1. | |
| amendment | |
| This Directive lays down rules for the patentability of computer-implemented inventions. | This Directive lays down rules for the patentability of computer-controlled inventions, sometimes also known as computer-implemented inventions. |
| justification | |
| As it is not the aim of this directive to amend the European Patent Convention or to call into question the non-patentability of software, as is explicitly stated in Recital 8 of the text adopted by the Council, it is quite inappropriate to call for the European Patent Convention to be revised. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "computer-controlled invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more nontechnical features realised wholly or partly by means of a computer program or computer programs, besides the technical features which any invention must possess; |
| justification | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "technical contribution", also called "invention", means a contribution to a field of technology. |
| justification | |
| Article 3 is a more appropriate place for a definition of patentability conditions, since it deals specifically with that question. An invention is equivalent to a technical contribution, which, besides its technical nature, must therefore be new, non-obvious, and capable of industrial application, as specified in Article 3. | |
| amendment | |
| "Technical" means "belonging to a field of technology". A new teaching about the use of controllable forces of nature, under the control of a computer program and beyond the technical devices required to implement the program, is technical. The processing, handling, representation and presentation of information by computer program are not technical, even where technical devices are employed for such purposes; | |
| justification | |
| A number of definitions need to be provided if the directive is to achieve its goal of legal clarification. The second paragraph reaffirms the patentability of innovatory material devices controlled by software, such as washing machines, ABS braking systems, etc. The third paragraph, which is consistent with the provisions of the TRIPS Treaty, will avoid patents being requested for software, even if this is in conjunction with technical devices. Clearly, if the technical devices used are themselves innovatory, a patent application may be submitted. This amendment takes up and refines the ideas contained in Article 2(a) and (b) as adopted at first reading. | |
| amendment | |
| "Field of technology" means an industrial field of application requiring the use of controllable forces of nature to obtain predictable results in the physical world; | |
| justification | |
| This provides a positive definition of the concept of "field of technology" for the purposes of patent law. Fields of technology belong to the physical world and are characterised by the need to use physical interaction to achieve the desired result, such as the movement of a vehicle, the emission of a laser beam, etc. This amendment reintroduces and supplements the amendment to Article 2(c) adopted at first reading. | |
| amendment | |
| "Information processing method" means any processing method handling digitally represented information, whatever the nature or origin of what it represents. These methods include digital information processing as such, but also the handling, representation or presentation of such information. | |
| justification | |
| This definition illustrates the nature of digital data processing performed by computer programs, none of which may be patentable. It also enables inventive technical processes, where the nature of the signals used is significant as regards the desired result, to remain patentable: e.g. electrical voltage to drive an engine, pressure differences to drive a hydraulic piston, etc., since here what matters is the result of controllable physical interaction and not the processing of information regardless of the physical carrier used. | |
| amendment | |
| Member States shall ensure that inventions are patentable irrespective of whether or not they use computerised means and that, conversely, no one may patent algorithms, software or information-processing methods, whether or not they are combined with technical mechanisms. | |
| justification | |
| The amendment stipulates that the scope of patentability cannot be altered by the presence or absence of data-processing devices in the proposed technical solution. Legitimately patentable inventions will remain so, such as a new ABS system producing better braking than previous generations. This amendment reproduces and refines Article 5 as adopted at first reading. | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | In order to be patentable, a computer-controlled invention must, in addition to being technical in nature, be new, susceptible of industrial application and involve an inventive step. The inventive step shall be assessed by consideration of the difference between the overall technical features in the patent claim and the state of the art, irrespective of whether or not such features are accompanied by non-technical features. |
| justification | |
| The wording used by the Council is tautological, in that it defines as a condition for the inventive step the fact that the invention should entail a technical contribution, in other words that it should belong to a field of technology, be new and involve an inventive step. In order to escape this chain of reasoning, an explicit definition is needed of the concept of an inventive step, with reference to the contribution the invention makes. This contribution must derive solely from its technical features, otherwise a patent application referring to the use of inventive software to control technical but not inventive devices could result in the issuing of a patent which would in fact be solely for software. This article reintroduces and refines the substance of Articles 2(b) and 4 adopted at first reading by Parliament, where this type of reasoning was also used. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | A computer program as such, on any carrier or in the form of a signal, cannot constitute a patentable invention. |
| justification | |
| The second paragraph of the Council's text is ambiguous, since it authorises software patentability provided the software produces "technical effects", an expression which in EPO practice means the capacity to resolve a specific problem, which is precisely what any software is intended to do. Accordingly, a computer program alone or on any carrier may not be claimed as an invention, as this would be tantamount to authorising software patentability on the grounds that the software itself possessed patentable technical features, which cannot be the case. Only claims for a computer-controlled invention as a process or as a software-controlled device are therefore legitimate. | |
| amendment | |
| 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. | Member States shall ensure 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. |
| justification | |
| The second paragraph of this article is identical to Article 3 as adopted by the European Parliament at first reading. It ensures that the directive is consistent with the provisions of the TRIPS Treaty by clearly stipulating that software is not a field of technology within the meaning of patent law. However, the material components and devices which make up computers will of course remain patentable when they are innovatory. | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that a computer-controlled invention may be claimed only as a product, that is as a device controlled by a programmed computer, a programmed computer network or other programmed apparatus, or as a technical process controlled by such a computer, computer network or apparatus through the execution of software. |
| justification | |
| A computer programme on its own or on any carrier may not be claimed as an invention, as this would be tantamount to authorising software patentability on the grounds that the software itself possessed patentable technical features, which cannot be the case. Only claims for a computer controlled invention as a process or as a software-controlled device are therefore legitimate. It is preferable to talk of a computer-controlled device rather than simply a programmed computer as this would again give the impression that software on its own may constitute an invention. The first paragraph is similar to Article 7(1) adopted by Parliament at first reading. | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | In accordance with Article 3, Member States shall ensure that the use of information processing methods can never constitute a direct or indirect patent infringement. |
| justification | |
| This second paragraph, which is not an additional restriction but rather a consequence of the definition of technicity introduced in Article 2, guarantees freedom of information. It reproduces and refines the meaning of Article 7(3) adopted by Parliament at first reading, drawing on the definition of information processing method included in the amendment to Article 2(e) new. | |
| amendment | |
| Member States shall ensure that, wherever the use of a patented technique is needed for ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement. | |
| justification | |
| Unimpeded interoperability implies not only that it has to be possible to carry out any reverse engineering operations needed in order to establish the specifications of the communication protocols and interfaces with which communication is to take place, but also that it must in fact be permissible to manufacture and market interoperable products. The second paragraph of Article 6, permitted under Article 30 of the TRIPS Agreement, is necessary to avert the serious distortions of competition on the internal market which might arise if the marketing of interoperable products invariably constituted an infringement of patent claims. The text of paragraph 6(2) corresponds exactly to ITRE Amendment 15, which became JURI Amendment 20 and was adopted at first reading in slightly amended form as Article 9. | |
| amendment | |
| the impact of patents for computerimplemented inventions on the factors referred to in Article 7; | the impact of patents for computer-controlled inventions on the factors referred to in Article 7; |
| justification | |
| Justification To be consistent with Article 1. | |
| amendment | |
| whether difficulties have been experienced in respect of the relationship between the protection by patent of computer-implemented inventions and the protection by copyright of computer programs as provided for in Directive 91/250/EEC and whether any abuse of the patent system has occurred in relation to computer-implemented inventions; | whether difficulties have been experienced in respect of the relationship between the protection by patent of computer-controlled inventions and the protection by copyright of computer programs as provided for in Directive 91/250/EEC and whether any abuse of the patent system has occurred in relation to computer-controlled inventions; |
| justification | |
| To be consistent with Article 1. | |
| amendment | |
| the aspects in respect of which it may be necessary to prepare for a diplomatic conference to revise the European Patent Convention | |
| justification | |
| As it is not the aim of this directive to amend the European Patent Convention or to call into question the non-patentability of software, as is explicitly stated in Recital 8 of the text adopted by the Council, it is quite inappropriate to call for the European Patent Convention to be revised. | |
| amendment | |
| the impact of patents for computer-implemented inventions on the development and commercialisation of interoperable computer programs and systems. | the impact of patents for computer-controlled inventions on the development and commercialisation of interoperable computer programs and systems. |
| justification | |
| To be consistent with Article 1. | |
| amendment | |
| justification | |
| En proposant la brevetabilité des inventions mises en oeuvre par ordinateur, la Commission ouvre la voie à la brevetabilité du savoir humain. De plus, cette directive ne répond pas aux enjeux économiques, scientifiques et culturels du secteur du logiciel ainsi qu'à la nécessité de promouvoir l'innovation. Pour toutes ces raisons et pour répondre à la forte opposition de scientifiques, d'éditeurs de logiciels, la position commune doit être rejetée | |
| amendment | |
| justification | |
| The Common Position was questioned by several Member states in the Council, even when the political agreement was finally adopted earlier this year. This means that there are strong doubts about the content of the Common Position. | |
| amendment | |
| Proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions | Proposal for a directive of the European Parliament and of the Council on the patentability of computer-aided inventions |
| justification | |
| This replacement is to be performed at all places in the text where the expression "computer-implemented invention" is used.
In their press release upon adoption of the "Common Position", the Council says that that their text did not allow patening of software as such but only of washing machines, mobile phones etc, which they called "computer-aided inventions". When a solution is "aided" by a computer, such as is the case e.g. in "computer-aided design" and "computer-aided manufacturing" (CAD/CAM), the claim is usually not directed to the software as such, but to an industrial engineering process. A computer can aid such a process but not implement it. A computer alone can only implement a software solution, and software together with a computer is nothing more than software as such and thus not an "invention" in the sense of patent law. The Council has good reasons to avoid this misleading term in its press release. The same reasons apply to the whole directive text. | |
| amendment | |
| Proposal for a directive of the European Parliament and of the Council on the patentability of computer-implemented inventions | Proposal for a directive of the European Parliament and of the Council on the patentability of computer-aided inventions |
| justification | |
| This replacement is to be performed at all places in the text where the expression "computer-implemented invention" is used.
In their press release upon adoption of the "Common Position", the Council says that that their text did not allow patening of software as such but only of washing machines, mobile phones etc, which they called "computer-aided inventions". When a solution is "aided" by a computer, such as is the case e.g. in "computer-aided design" and "computer-aided manufacturing" (CAD/CAM), the claim is usually not directed to the software as such, but to an industrial engineering process. A computer can aid such a process but not implement it. A computer alone can only implement a software solution, and software together with a computer is nothing more than software as such and thus not an "invention" in the sense of patent law. The Council has good reasons to avoid this misleading term in its press release. The same reasons apply to the whole directive text. | |
| amendment | |
| Directive 2004/../EC of the European Parliament of the Council on the patentability of computer implemented inventions | Directive 2004/../EC of the European Parliament of the Council on the patentability of computer operated inventions |
| justification | |
| The title of the directive should undoubtedly express its scope, which is dealing with computer-operated devices, not with software. The word "implemented" might suggest that patenting of software is under circumstances possible. | |
| amendment | |
| La presente Directiva establece normas para la patentabilidad de las invenciones implementadas en ordenador. | La presente Directiva establece normas relativas a los límites de la patentabilidad y a la posibilidad de hacer valer las patentes en relación con los programas informáticos. |
| justification | |
| El término "invención aplicada a través de ordenador" no es utilizado por los informáticos. De hecho, no se utiliza en absoluto. Fue introducido por el OEP en mayo de 2000 para legitimar las patentes de métodos empresariales, al igual que para equiparar la práctica de OEP a la de Japón y EEUU. El término
Esta implicación está en contradicción con el artículo 52 CEP, según el cual los algoritmos, los métodos y los programas empresariales para los ordenadores no son invenciones en el sentido de la ley de patentes. No puede ser objetivo de la presente directiva declarar todas las clases de ideas | |
| amendment | |
| This Directive lays down rules for the patentability of computer-implemented inventions. | This directive lays down limiting rules for the patentability of computer-aided inventions. |
| justification | |
| Only software solutions can be "computer-implemented". The aim of the directive is not to state that software solutions are inventions in the sense of patent law. | |
| amendment | |
| This Directive lays down rules for the patentability of computer-implemented inventions. | This directive lays down limiting rules for the patentability of computer-aided inventions. |
| justification | |
| Only software solutions can be "computer-implemented". The aim of the directive is not to state that software solutions are inventions in the sense of patent law. | |
| amendment | |
| This Directive lays down rules for the patentability of computer-implemented inventions. | This Directive lays down rules concerning the patentability of computer-assisted inventions. |
| justification | |
| The term "implemented" is not suitable, as computer-implemented software is not an invention, as software is not patentable. The computer and its program are used only to control a hardware invention, hence the change of word. Moreover, the expression computer implemented invention is not in use among specialist, on the contrary of the expression "computer-assisted" such as in the software "computer-assisted design / computer-assisted manufacturing". | |
| amendment | |
| b) "Technischer Beitrag" ist ein Beitrag zum Stand der Technik auf einem Gebiet der Technik, der neu und für eine fachkundige Person nicht nahe liegend ist. Zur Ermittlung des technischen Beitrags wird beurteilt, inwieweit sich der Gegenstand des Patentanspruchs, der technische Merkmale umfassen muss, die ihrerseits mit nichttechnischen Merkmalen versehen sein können, in seiner Gesamtheit vom Stand der Technik abhebt. |
b) "Technischer Beitrag" ist ein Beitrag zum Stand der Technik auf einem Gebiet der Technik, der neu und für eine fachkundige Person nicht nahe liegend ist.
c) Software leistet einen technischen Beitrag, soweit sie bei der digitalen Verwaltung, Verarbeitung und Darstellung von Daten den Einsatz beherrschbarer Naturkräfte zur unmittelbaren Herbeiführung des Ergebnisses direkt benutzt. |
| justification | |
| Der hier vorgelegte Änderungsantrag soll den Bereich, in dem Software vom Patentschutz im Rahmen einer technischen Entwicklung mit umfasst ist, näher fixieren und genauer abgrenzen. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "Computer-aided invention", also called "computer-implemented invention", means an invention in the sense of patent law the performance of which involves the use of a programmable apparatus; |
| justification | |
| In their press release upon adoption of the "Common Position", the Council says that that their text did not allow patening of software as such but only of washing machines, mobile phones etc, which they called "computer-aided inventions". When a solution is "aided" by a computer, such as is the case e.g. in "computer-aided design" and "computer-aided manufacturing" (CAD/CAM), the claim is usually not directed to the software as such, but to an industrial engineering process. A computer can aid such a process but not implement it. A computer alone can only "implement" (= run) a software solution, and software running on a computer is nothing more than software as such and thus not an "invention" in the sense of patent law.
As long as the old term is still in use, it has to be defined here as a synonym. This amendment removes wordings from 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. This amendment is a simplified version of an amendment adopted in 1st reading. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "Computer-aided invention", also called "computer-implemented invention", means an invention in the sense of patent law the performance of which involves the use of a programmable apparatus; |
| justification | |
| In their press release upon adoption of the "Common Position", the Council says that that their text did not allow patening of software as such but only of washing machines, mobile phones etc, which they called "computer-aided inventions".
When a solution is "aided" by a computer, such as is the case e.g. in "computer-aided design" and "computer-aided manufacturing" (CAD/CAM), the claim is usually not directed to the software as such, but to an industrial engineering process. A computer can aid such a process but not implement it. A computer alone can only "implement" (= run) a software solution, and software running on a computer is nothing more than software as such and thus not an "invention" in the sense of patent law. As long as the old term is still in use, it has to be defined here as a synonym. This amendment removes wordings from 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. This amendment is a simplified version of an amendment adopted in 1st reading. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "computer-implemented invention" means an invention within the meaning of the European Patent Convention, the performance of which involves the use of a computer, computer network or programmable apparatus. |
| justification | |
| Reference to the European Patent Convention definition is clearer. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "computer-implemented invention" means any invention within the sense of patent law the application of which involves the additional use of a computer, computer network or other programmable apparatus as a control apparatus, which changes one or more features of the state of the art in a given field; |
| justification | |
| This statement shows that a 'computer-implemented invention' is equal to 'involving the additional use of a computer'. | |
| amendment | |
| "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "computer-assisted invention" means any invention the performance of which involves the use of a computer, a computer network or other programmable apparatus and having one or more non-technical features which are realised wholly or partly by means of a computer programme or computer programmes besides the technical features that any invention must contribute. |
| justification | |
| This is very close to EP 1st reading article 2a ; this amendment aims at ensuring that software cannot be patentable, but rather only computer-assisted hardware inventions, software needs to be excluded from the "technical" field, as Parliament did at first reading. | |
| amendment | |
| "invenciones implementadas en ordenador", toda invención para cuya ejecución se requiera la utilización de un ordenador, una red informática u otro aparato programable, teniendo la invención una o más características que se realicen total o parcialmente mediante un programa o programas de ordenador; | "invenciones asistidas por ordenador", toda invención en el sentido del Convenio de Patente Europea para cuya ejecución se requiera la utilización de un ordenador, una red informática u otro aparato programable y teniendo en su aplicación una o más características no técnicas que se realicen total o parcialmente mediante un programa o programas de ordenador, además de las características que cualquier invención deba aportar. |
| justification | |
| El artículo 52 del CEP establece claramente que un programa de ordenador independiente (o un programa de ordenador como tal) no puede constituir una invención patentable. Esta enmienda aclara que una innovación es solamente patentable si se ajusta al artículo 52 del EPC, independientemente de si un programa de ordenador forma parte de su aplicación o no.
Esta enmienda se adoptó en una forma ligeramente diferente en la primera lectura del PE. Se establecía "invención aplicada a través de ordenador" en vez de "invención asistida por ordenador". La razón para este cambio de la terminología se encuentra en la justificación para el artículo 1. | |
| amendment | |
| "computer implemented inventions" means any invention, the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; | "computer implemented inventions" means any invention within the meaning of the European Patent Convention, the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program or computer programs; |
| justification | |
| Reference to the EPC clarifies the text. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | An "invention" in the sense of patent law 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 claimed 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. |
| justification | |
| Upon close reading, it appears that according to the Council's text the "technical contribution" may consist solely of non-technical features. The text is full of redundant statements and misleading ambiguities, but does contain some usable elements.
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 obscure 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. This amendment adds some ideas of the Council such as that of subtracting the prior art from the claimed object. If worded carefully like here, this can help provide further clarification. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "technical contribution" means an activity which changes the state of the art, which is essentially new and not obvious. The technical contribution shall be assessed by consideration of the difference between the state of the art and the state after consideration of the scope of the patent claim, which must comprise technical features, that is, applied to material systems such as structures and materials, substances and energy, as well as their manufacture and processing, irrespective of whether or not these are accompanied by non-technical features. |
| justification | |
| If the parameters of the state of the material system undergo changes, we are dealing with change to the technical state. If, on the other hand, this new state leads to economic or other benefits then we are speaking of a technical contribution. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "technical contribution" means a new way and non obvious for a person skilled in the state of the art to use forces of nature to solve a problem in a technical field ; |
| justification | |
| This is very close to EP 1st reading article 2a ; In order to ensure that software cannot be patentable, but rather only computer-controlled hardware inventions, software needs to be excluded from the "technical" field, as Parliament did at first reading. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "contribución técnica", también llamada "invención", significa una contribución en un campo de la tecnología. El carácter técnico de la contribución es uno de los cuatro requisitos para la patentabilidad. Además, para merecer una patente, la contribución técnica tiene que ser nueva, no obvia, y susceptible de aplicación industrial. El uso de fuerzas naturales para controlar los efectos físicos más allá de la representación digital de la información pertenece a un campo de la tecnología. El tratamiento, manejo, y presentación de la información no pertenece a un campo de la tecnología, ni siquiera donde los dispositivos técnicos son empleados para tales fines. En todo caso, las características no técnicas de la invención no serán tomadas en consideración en la evaluación de la contribución técnica. |
| justification | |
| El texto del Consejo combina la prueba de la invención (contribución técnica) con otras pruebas no obvias (escalón de invención) y nuevas, debilitando, por ello, todas las pruebas, desviándose del artículo 52 CPE, y creando problemas prácticos.
Las "cuatro fuerzas de la naturaleza" son un concepto reconocido de epistemología (teoría de la ciencia). Mientras que las matemáticas y el procesamiento de datos son abstractos y sin relación al que se relaciona con las fuerzas de la naturaleza, podría, sin embargo, sostenerse que algunos métodos empresariales dependen de la química de las células cerebrales del cliente. Éstas son fuerzas no controlables, es decir, sujetas a la libre voluntad. Por tanto el término "fuerzas controlables de la naturaleza" excluye claramente lo que necesita ser excluido y sin embargo proporciona bastante flexibilidad para la inclusión de posibles campos futuros de ciencia natural aplicada más allá de las actualmente reconocidas "4 fuerzas de la naturaleza". Este concepto se ha formulado en la mayor parte de las jurisdicciones e incluso se ha incorporado a la legislación de países como Japón y Polonia. La justificación clásica para el carácter técnico de las "invenciones aplicadas a través de ordenador" no es que el significado de "técnico" haya cambiado, sino que el ordenador efectivamente consume la energía de una manera controlada, y que la "invención" debe "considerarse como un todo". Los críticos de esta opinión, por ejemplo el Tribunal Federal Alemán de Patentes, argumentan que la solución es completada mediante un cálculo anterior abstracto, y solamente durante la aplicación no inventiva sobre un sistema de procesamiento de datos, entran en juego las fuerzas de la naturaleza. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "technical contribution", also called "invention", means a contribution to the state of the art in a technical field. The technical character of the contribution is one of the four requirements for patentability. Additionally, to deserve a patent, the technical contribution has to be new, non-obvious, and susceptible of industrial application. The use of natural forces to control physical effects beyond the digital representation of information belongs to a technical field. The processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes. The method of data processing by using a computer, network or other programmable apparatus is not considered to belong to a field of technology. |
| justification | |
| The definition of "technical contribution" has to be clear in order to determine what is patentable and what is not. Reference to "technical features" is too vague. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | An "invention" in the sense of patent law 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 claimed 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. |
| justification | |
| Upon close reading, it appears that according to the Council's text the "technical contribution" may consist solely of non-technical features. The text is full of redundant statements and misleading ambiguities, but does contain some usable elements.
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 obscure 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. This amendment adds some ideas of the Council such as that of subtracting the prior art from the claimed object. If worded carefully like here, this can help provide further clarification. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | An "invention" in the sense of patent law 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 claimed 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. |
| justification | |
| Upon close reading, it appears that according to the Council's text the "technical contribution" may consist solely of non-technical features. The text is full of redundant statements and misleading ambiguities, but does contain some usable elements.
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 obscure 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. This amendment adds some ideas of the Council such as that of subtracting the prior art from the claimed object. If worded carefully like here, this can help provide further clarification. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. |
"technical contribution" means the application of a new process using physical forces in an inventive and non-obvious way, subject to the following provisos:
|
| justification | |
| Ensures compatibility with the software copyright directive and ensures users have access to interoperable programme systems and networks. | |
| amendment | |
| "technical contribution" means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features. | "contribution technique" désigne une solution à un problème dans un domaine technique. |
| justification | |
| L’article 2(b), combiné avec l’article 2(c) suggéré, propose une définition non-tautologique de l’expression "contribution technique". Il est clair qu’une contribution technique correspond à une solution technique : une solution à un problème dans un domaine technique. L’évaluation mentionnée à la seconde phrase de l’article 2(b) est relative à une approche largement utilisée pour la détermination de l’activité inventive. La seconde phrase est par conséquent supprimée de l’article pour se référer seulement à une contribution technique. | |
| amendment | |
| "Interoperability" means the ability of a computer program to communicate and exchange information with other computer programs and mutually to use the information which has been exchanged, including the ability to use, convert, or exchange file formats, protocols, schemas, interface information or conventions, so as to permit such a computer program to work with other computer programs and with users in all the ways in which they are intended to function. | |
| justification | |
| It is necessary to design the meaning of interoperability. | |
| amendment | |
| "Technical" means the identification of a physical effect which goes beyond the digital representation of information and the normal physical interaction between software and hardware of a computer, network or other programmable apparatus. | |
| justification | |
| It is necessary to make clear that the term "technical" demands the identification of a physical effect. Such an effect must be produced in addition to effects with regard to digital representation of information and such caused merely by the interaction between software and hardware with regard to operability. | |
It could have been a good idea to define "technical" simply as "physical". In its current convoluted state, the amendment is meaningless. It reads like an erroneous term transformation of the EPO's erroneous doctrine of "further technical effect".
| amendment | |
| "field of technology" means an industrial application domain requiring the use of controllable forces of nature to achieve predictable results. "Technical" means "belonging to a field of technology". | |
| justification | |
| These definitions are essential, especially to clarify the term "field of technology". | |
| amendment | |
| "Interoperability" means the ability of a computer program to communicate and exchange information with other computer programs and mutually to use the information which has been exchanged, including the ability to use, convert, or exchange file formats, protocols, schemas, interface information or conventions, so as to permit such a computer program to work with other computer programs and with users in all the ways in which they are intended to function. | |
| justification | |
| This amendment clarifies that the physical use of a computer cannot be considered as the "technical contribution". | |
| amendment | |
| A "field of technology" is a discipline of applied sciences in which new knowledge is gained by experimentation with controllable forces of nature. "Technical" means "belonging to a field of technology"; | |
| justification | |
| This amendment clarifies the term "field of technology" from Art 27 TRIPs.
It is an improved version of the Parliament's first reading article 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 applicability" is a separate requirement of patentability. Patentability requirements should stand on their own, relying on each other as little as possible. | |
| amendment | |
| justification | |
| This amendment clarifies the term "field of technology" from Art 27 TRIPs.
It is an improved version of the Parliament's first reading article 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 applicability" is a separate requirement of patentability. Patentability requirements should stand on their own, relying on each other as little as possible. | |
| amendment | |
| "Technical" means "belonging to a field of technology"; | |
| justification | |
| This is very close to EP 1st reading article 2a ; In order to ensure that software cannot be patentable, but rather only computer-controlled hardware inventions, software needs to be excluded from the "technical" field, as Parliament did at first reading. | |
| amendment | |
| "domaine technique" signifie toute activité utilisant directement ou indirectement des forces de la nature contrôlables afin d’obtenir des résultats prévisibles dans le monde physique tels que des signaux électriques, radios ou lumineux. Le traitement de l’information dans le but d’exécuter ou de soutenir une telle activité doit être considéré comme appartenant à un domaine technique, alors que le traitement de l’information à des fins de calcul, de gestion de valeurs financières ou de traitement de texte ne doit pas être considéré comme appartenant à un domaine technique. | |
| justification | |
| La première phrase codifie essentiellement une doctrine utilisée dans la jurisprudence actuelle allemande (« Logikverifikation » de 1999, BGHZ 143, 255) et propose quelques exemples de types de résultats à considérer. Les signaux électriques, radios et lumineux, qui ont fait l’objet d’une mention dans le document de travail 2002/0047 (COD), sont caractéristiques de la technologie moderne.
La seconde phrase clarifie que le traitement de l’information pour exécuter ou soutenir des activités tels que mentionnées à la première phrase est considéré comme technique, alors que le traitement à d’autre fins (par exemple : méthode de gestion) ne peut être considéré comme technique. Cette limite reflète la pratique actuelle en Allemagne et en Europe. | |
The operation of a machine is technical, but an operation manual is not. The use of the machine is technical, but the instruction manual, computer program or algorithm that describes it is not.
| amendment | |
| "campo de la tecnología" significa ámbito de aplicación industrial requiriendo el uso de fuerzas de la naturaleza controlables para alcanzar resultados fiables. "Técnico" significa "perteneciente a un campo de la tecnología"; | |
| justification | |
| El hecho de que los aparatos programables, tales como un ordenador genérico, hagan uso de efectos físicos para procesar la información no debe utilizarse para permitir la protección de patentes a programas que funcionan por medio de tales instrumentos.
Esta enmienda también aclara el término no definido de ADPIC "campo de tecnología" Esta enmienda corresponde a la letra c del artículo 2 del texto consolidado de la primera lectura del Parlamento Europeo. | |
| amendment | |
| "industria" en el sentido de la ley de patentes significa producción automatizada de bienes materiales; | |
| justification | |
| Se quiere evitar que las innovaciones en la "industria de la música" o la "industria de los servicios jurídicos" se ajusten con los requisitos de ADPIC relativos a la "aplicabilidad industrial". El concepto de "industria" abarca amplios significados y es utilizado frecuentemente en la actualidad de manera inapropiada en el contexto de la ley de patentes.
Esta enmienda corresponde a la letra d) del artículo 2 del texto consolidado de la primera lectura del PE. | |
| amendment | |
| "Field of technology" means an industrial application domain requiring the use of controllable forces of nature to achieve predictable results. | |
| justification | |
| This is very close to EP 1st reading article 2a ; In order to ensure that software cannot be patentable, but rather only computer-controlled hardware inventions, software needs to be excluded from the ‘technical’ field, as Parliament did at first reading. | |
| amendment | |
| The production and distribution of information goods is not an "industry" in the sense of patent law. | |
| justification | |
| Information goods can be reproduced on millions of computers within seconds at near to zero cost. More than material goods, information goods are suitable for production by freelancers. The economics differ, and the business models for information goods tend to be closer to those of the service sector than of the classical "industry" sector.
This amendment clarifies, using a negative definition, 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. | |
| amendment | |
| The production and distribution of information goods is not an "industry" in the sense of patent law. | |
| justification | |
| Information goods can be reproduced on millions of computers within seconds at near to zero cost. More than material goods, information goods are suitable for production by freelancers. The economics differ, and the business models for information goods tend to be closer to those of the service sector than of the classical "industry" sector.
This amendment clarifies, using a negative definition, 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 information goods can not fall within it. | |
| amendment | |
| The production and distribution of information goods is not an "industry" in the sense of patent law. | |
| justification | |
| Information goods can be reproduced on millions of computers within seconds at near to zero cost. More than material goods, information goods are suitable for production by freelancers. The economics differ, and the business models for information goods tend to be closer to those of the service sector than of the classical "industry" sector.
This amendment clarifies, using a negative definition, 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. | |
| amendment | |
| "Interoperability" means the ability of a computer program to communicate and exchange information with other computer programs and mutually to use the information which has been exchanged, including the ability to use, convert, or exchange file formats, protocols, schemas, interface information or conventions, so as to permit such a computer program to work with other computer programs and with users in all the ways in which they are intended to function. | |
| justification | |
| It is necessary to define the term "interoperability" in the articles. | |
| amendment | |
| "Industry" in the sense of patent law means commercially organised production of material goods; | |
| justification | |
| This amendments clarifies, using a positive defintion, a central term of Art 27 TRIPs which has been used in several provisions and amendments within this directive.
Innovations in the "music industry" or "legal services industry" should not 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 "automated" was replaced 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. | |
| amendment | |
| "Industry" in the sense of patent law means commercially organised production of material goods; | |
| justification | |
| This amendments clarifies, using a positive defintion, a central term of Art 27 TRIPs which has been used in several provisions and amendments within this directive.
Innovations in the "music industry" or "legal services industry" should not 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 "automated" was replaced 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. | |
| amendment | |
| "information processing method" means any processing method handling digitally represented information. | |
| justification | |
| To garantee that pure software cannot be patented, but only material inventions controlled by computers, we must exclude the field of software from the field of what is "technical_" as did the Parliament in its 1st reading. The world of software is the world of digital information. | |
| amendment | |
| "interopérabilité" signifie la capacité pour un programme informatique de communiquer, échanger des informations avec d'autres programmes informatiques et utiliser mutuellement l'information échangée, ce qui comprend la capacité d'utiliser, de convertir et d'échanger des formats de fichiers, des protocoles, des schémas et des informations relatives à des interfaces ou des conventions, afin de permettre à ce programme informatique de communiquer et de coopérer avec d'autres programmes informatiques et avec des utilisateurs de toutes les façons dont ils sont destinés à interagir. | |
| justification | |
| Il est essentiel, d'autre part, dans le cadre de cette directive, de fournir une définition précise de l'interopérabilité et des actes qui lui sont nécessaires. | |
| amendment | |
| Para ser patentable, una invención implementada en ordenador deberá ser susceptible de aplicación industrial, ser nueva y suponer una actividad inventiva. Para entrañar una actividad inventiva, la invención implementada en ordenador deberá aportar una contribución técnica. | |
| justification | |
| La primera frase fue ya incorporada en el artículo 2 b) de la resolución aprobada por el PE. La segunda frase mezcla la "invención" o "contribución técnica" con la condición de escalón de invención.
El Consejo saca esta "contribución técnica en el escalón de invención" de la Oficina Europea de Patentes, donde se utiliza para permitir que ordenadores genéricos que funcionan con programas informáticos sean considerados invenciones patentables. Con las definiciones del Parlamento, no es necesaria ninguna condición adicional para la patentabilidad aparte de los mencionados en el artículo 52 del CEP (según lo mencionado en el artículo2 b)) | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | Member States shall ensure that inventions are patentable irrespective of whether or not they use computerised means and that, vice versa, no one may patent algorithms, software or information processing methods, whether or not they are combined with technical mechanisms. |
| justification | |
| The definition of inventive step supplied by the Council is not suitable, as it refers to the definition of a technical contribution, which is not itself explicitly defined, but which does, however, make reference, by means of the word ‘contribution’, to an inventive step. In order to break this vicious circle, inventive step needs to be defined in relation to itself. In order for a new computer program executed on a technical device not to be a patentable invention, the inventive step has to be evaluated solely in relation to the technical features of the patent claim. | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must make involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | In order to be patentable, a computer-implemented invention must be susceptible of industrial application and make a technical contribution. The technical contribution must be new and involve an inventive step. |
| justification | |
| The inventive step should be in the technical contribution for the computer-implemented invention to be patentable. | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | In order to be patentable, an [computer-aided] invention must make a technical contribution. The technical contribution must be new and involve an inventive step. If there is no technical contribution, there is no patentable subject matter, and no invention. |
| justification | |
| Even the Council's Art 2(b) agrees that the "technical contribution" must be new and involve an inventive step, and not vice versa. The second sentence makes it absolutely clear that the "technical contribution" requirement is closely connected to the requirement of patentable subject matter and dissociated from that of non-obviousness.
Moreover, this amendment deletes the attribute "computer-implemented", since the above logic applies to all patentable inventions. There is no advantage in creating sui generis software patent law. | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | In order to be patentable, a computer-aided invention must make a technical contribution. The technical contribution must be new and involve an inventive step. If there is no technical contribution, there is no patentable subject matter, and no invention. |
| justification | |
| Even the Council's Art 2(b) agrees that the "technical contribution" must be new and involve an inventive step, and not vice versa. The second sentence makes it absolutely clear that the
Moreover, this amendment deletes the attribute "computer-implemented", since the above logic applies to all patentable inventions. There is no advantage in creating sui generis software patent law. | |
| amendment | |
| In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and must involve an inventive step. In order to involve an inventive step, a computer-implemented invention must make a technical contribution. | In order to be patentable, a computer-implemented invention must make a technical contribution and be suitable for practical, including industrial, application, it must be new and change the current state of the art. |
| justification | |
| This article refers to the practical significance of the invention in question, with the new element relating to both software and hardware and changing the state of the art. | |
| amendment | |
| In order to be patentable, a computer-controlled invention must be new, susceptible of industrial application and involve an inventive step. The inventive step shall be assessed by consideration of the difference between all of the technical features included in the scope of the patent claim considered as a whole and the state of the art, irrespective of whether or not such features are accompanied by non-technical features. | |
| justification | |
| This first sentence of this amendment restates the former EP 1st reading amendment 4.1 first part and the second sentence restates former EP 4.3 which were deleted by Council.
The definition of the inventive step of the CCP is insufficient because it refers to the definition of what a technical contribution is, but this is not defined precisely in the text although there is a reference (with the word "contribution") to an inventive activity. to break this vicious circle we must define the inventive activity as such. So that a new computer programme executed on a technical apparatus can not constitute a patentable invention, the inventive step must be assessed in relation to the sole technical characteristics of the patent claim. | |
| amendment | |
| Member States shall ensure 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. | |
| justification | |
| This amendment clarifies Art 27 TRIPs by a negative definition of "fields of technology".
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. | |
| amendment | |
| Member States shall ensure 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. | |
| justification | |
| This amendment clarifies Art 27 TRIPs by a negative definition of "fields of technology".
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 interpreting this article in meaningful ways (i.e., this amendment makes sure that one cannot interpret TRIPs in a way which makes it require software patents, but does not say anything about whether or not it allows them). This amendment corresponds to article 3 in the consolidated text of the EP’s first reading. | |
| amendment | |
| The application for a patent must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. | |
| justification | |
| This amendment clarifies expressly that a patent application has to disclose an invention clearly and comprehensively, so that it can be implemented by someone working in the field. The expression "a person skilled in the art" is a well-established term of patent law which means someone of ordinary skill in the relevant technical field. | |
| amendment | |
| Member States shall ensure 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. | |
| justification | |
| This amendment clarifies Art 27 TRIPs by a negative definition of "fields of technology".
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 interpreting this article in meaningful ways (i.e., this amendment makes sure that one cannot interpret TRIPs in a way which makes it require software patents, but does not say anything about whether or not it allows them). This amendment corresponds to article 3 in the consolidated text of the EP’s first reading. | |
| amendment | |
| The application for a patent must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. | |
| justification | |
| This amendment clarifies expressly that a patent application has to disclose an invention clearly and comprehensively, so that it can be implemented by someone working in the field. The expression "a person skilled in the art" is a well-established term of patent law which means someone of ordinary skill in the relevant technical field. | |
| amendment | |
| Un programa de ordenador como tal no podrá constituir una invención patentable. | |
| justification | |
| Las últimas enmiendas de la Comisión incorporadas en la reunión del Consejo 18 de mayo de 2004 redefinen un programa de ordenador como tal para hacer referencia al código de fuentes o al código automático de un programa individual de ordenador.
Nadie está interesado en las patentes de tales programas de ordenador individuales. Estas inserciones no responden a ningún propósito regulador sino que más bien imponen una interpretación del artículo 52 CEP que priva de sentido a la ley y es rechazada por el Tribunal Federal Alemán e incluso por la OEP. La doctrina de los "efectos técnicos más allá de la interacción física normal" es un formalismo introducido con la única intención de convertir los métodos empresariales aplicados por ordenador en patentables, según lo explicado en el apéndice 6 de un informe enviado por la OEP a las oficinas de patentes de EEUU y Japón: http://www.european-patente-office.org/tws/appendix6.pdf El cambio de "invención" a "innovación" es necesario porque "invención" es sinónimo de "materia legal" en el CEP. La redacción original sugiere que todo lo que se puede hacer en un ordenador es por definición una invención (y por lo tanto llega a ser patentable si es igualmente nuevo, no obvio e industrialmente aplicable). | |
| amendment | |
| 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. | No se considerará que una innovación asistida por ordenador aporta una contribución técnica meramente porque implique el uso de un ordenador, red u otro aparato programable. |
| justification | |
| Ver justificación de la enmienda al artículo 4 apartado 1 de Manuel Medina Ortega. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | Programs for computers are not inventions in the sense of patent law. |
| justification | |
| Art 52(2) EPC states that programs for computers are not inventions in the sense of patent law. It is a good idea to transfer this provision into EU law. The additional provision of Art 52(3) (exclusion only pertains to computer programs as such) should be reflected in an additional clause (amendment to Art 4.2), which also clarifies the above provision. The EU law should be clearer, not less clear, than Art 52 EPC. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | Programs for computers are not inventions in the sense of patent law. |
| justification | |
| Art 52(2) EPC states that programs for computers are not inventions in the sense of patent law. It is a good idea to transfer this provision into EU law. The additional provision of Art 52(3) (exclusion only pertains to computer programs as such) should be reflected in an additional clause (amendment to Art 4.2), which also clarifies the above provision. The EU law should be clearer, not less clear, than Art 52 EPC. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | Programs for computers are not inventions in the sense of patent law. |
| justification | |
| Art 52(2) EPC states that programs for computers are not inventions in the sense of patent law. It is a good idea to transfer this provision into EU law. The additional provision of Art 52(3) (exclusion only pertains to computer programs as such) should be reflected in an additional clause (amendment to Art 4.2), which also clarifies the above provision. The EU law should be clearer, not less clear, than Art 52 EPC. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | A computer program as such cannot constitute a patentable invention. Computer programs as such are effectively protected by copyright. The objective of the directive is to provide a proper legal certainty as an incentive for innovation for inventors and does not affect computer-programmers. |
| justification | |
| Although for the legal point of view it is clear that the directive will not affect the open-source, it must be clearly pointed out that the objective of the directive is to make the computer-implemented inventions patentable and not computer programmes as such. The target group it concerns are inventors and not computer programmers. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | The content of a computer program cannot constitute a patentable invention. Software shall remain under the protection of copyright according to Directive 91/250 CEE. |
| justification | |
| A patent cannot claim a monopole on software, whatever carrier the software is on because this would mean that software is patentable. | |
| amendment | |
| A computer program is a solution of a problem by calculation with the abstract entities of a generic data processing machine, such as input, output, processor, memory, storage as well as interfaces for information exchange with external systems and human users. A computer program may take various forms, e.g. a computing process, an algorithm, or a text recorded on a medium. 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. | |
| justification | |
| Definition of the computer program is important for determining the patentability. | |
| amendment | |
| A computer program as such cannot constitute a patentable invention. | A computer program is a solution of a problem by calculation with the abstract entities of a generic data processing machine, such as input, output, processor, memory, storage as well as interfaces for information exchange with external systems and human users. A computer program may take various forms, e.g. a computing process, an algorithm, or a text recorded on a medium. 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. |
| justification | |
| This amendment proposes to replace the Council's amendment with a text which concretises the meaning of Art 52(2) and 52(3) EPC. This proposal is based on the explanation given in the original EPO Examination Guidelines of 1978 and subsequent caselaw.
The Commission’s last minute amendments inserted at the Council 18 May 2004 meeting redefine a "computer program as such" to referring to the "source code or machine code" of an individual computer program, as defined by copyright. This is meaningless in the context of patent law. The effect of the Council's proposal can only be to make Art 52 EPC meaningless. The "normal interaction between programs and computers" is about as well defined as the "normal interaction between the cook and the recipe". It is a legal formula which the EPO invented in 1998 in order to circumvent Art 52 EPC. Only two years later, the EPO itself commented this formula as follows:
"There is no need to consider the concept of "further technical effect" 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 Board of Appeals 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." | |
| amendment | |
| 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. | A computer program is a solution of a problem by calculation with the abstract entities of a generic data processing machine, such as input, output, processor, memory, storage as well as interfaces for information exchange with external systems and human users. A computer program may take various forms, e.g. a computing process, an algorithm, or a text recorded on a medium. 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. |
| justification | |
| This amendment proposes to replace the Council's amendment with a text which concretises the meaning of Art 52(2) and 52(3) EPC. This proposal is based on the explanation given in the original EPO Examination Guidelines of 1978 and subsequent caselaw.
The Commission’s last minute amendments inserted at the Council 18 May 2004 meeting redefine a "computer program as such" to referring to the "source code or machine code" of an individual computer program, as defined by copyright. This is meaningless in the context of patent law. The effect of the Council's proposal can only be to make Art 52 EPC meaningless. The "normal interaction between programs and computers" is about as well defined as the "normal interaction between the cook and the recipe". It is a legal formula which the EPO invented in 1998 in order to circumvent Art 52 EPC. Only two years later, the EPO itself commented this formula as follows:
"There is no need to consider the concept of "further technical effect" 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 Board of Appeals 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." | |
| amendment | |
| 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. | A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use only of a computer, network or other programmable apparatus, with no practical possibility of its application in the starting and controlling of material systems. Accordingly, inventions involving exclusively computer programs, whether expressed as source code, as object code or in any other form, and those which implement business, as well as mathematical computational methods, texts recorded on a carrier and algorithms themselves shall not be patentable. |
| justification | |
| Two statements are included in this point: firstly, it removes the possibility of using a computer or network or other control apparatus to produce programs that will be submitted for patent, and secondly it excludes internal computer programs as well as all mathematical methods and different algorithms as well as business methods from being patentable solutions. | |
| amendment | |
| 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. | 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, computer programs, 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. |
| justification | |
| The definition of inventive step supplied by the Council is not suitable, as it refers to the definition of a technical contribution, which is not itself explicitly defined, but which does, however, make reference, by means of the word ‘contribution’, to an inventive step. In order to break this vicious circle, inventive step needs to be defined in relation to itself. In order for a new computer program executed on a technical device not to be a patentable invention, the inventive step has to be evaluated solely in relation to the technical features of the patent claim. | |
| amendment | |
| 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. |
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.
2a 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. |
| justification | |
| A technical amendment to define more clear in the text that inventions involving computer programs, 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 are not patentable. | |
| amendment | |
| The Member States shall ensure that data processing is not considered to be a field of technology as defined under patent law, and that innovations in the field of data processing are not considered inventions as defined under patent law. | |
| justification | |
| This is EP 1st reading article 3. This ensures that software is not considered technical, which is important for compliance to TRIPS. | |
| amendment | |
| Member States shall ensure that data processing solutions are not considered to be patentable inventions merely because they improve efficiency in the use of resources within data processing systems. | |
| justification | |
| Nobody ever writes software without trying to optimise the use of computing resources.
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’s 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 | |
| amendment | |
| Member States shall ensure that data processing solutions are not considered to be patentable inventions merely because they improve efficiency in the use of resources within data processing systems. | |
| justification | |
| Nobody ever writes software without trying to optimise the use of computing resources.
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’s 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 | |
| amendment | |
| Member States shall ensure that data processing solutions are not considered to be patentable inventions merely because they improve efficiency in the use of resources within data processing systems. | |
| justification | |
| Self-explanatory. | |
| amendment | |
| Los Estados miembros garantizarán que el procesamiento de datos no se considere un ámbito de tecnología en el sentido del derecho de patentes y que las innovaciones en el ámbito del procesamiento de datos tampoco se considere invenciones en el sentido del derecho de patentes. | |
| justification | |
| Se garantiza el cumplimiento del ADPIC asegurándose que los programas informáticos no pertenezcan al ámbito de la tecnología. Obsérvese que esto no excluye a los dispositivos utilizados para el procesamiento de los datos de la patentabilidad.
Un ordenador puede solamente llevar a cabo dicho procesamiento, pero crear una nueva clase de ordenadores es un progreso en la ingeniería electrónica y no en el procesamiento de datos. | |
| amendment | |
| Los Estados miembros garantizarán que las soluciones a los problemas técnicos aplicadas a través de ordenador no sean consideradas como invenciones patentables cuando solamente mejoren la eficacia en el uso de recursos en los sistemas de procesamiento de datos. | |
| justification | |
| Se garantiza que hacer que un programa funcione con mayor rapidez o que use menos memoria no pueda ser utilizado como justificación para conceder una patente.
Esta enmienda corresponde al artículo 6 del texto consolidado en primera lectura del PE. | |
| amendment | |
| Member States shall ensure that a computer-implemented invention may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that a computer-implemented invention may be claimed as a product in the form of a machine or technical apparatus with the addition of a computer, computer network or other programmable apparatus or as a technical process which is started and controlled by means of sensors, circuit breakers and commutators through such a computer, computer network or other control apparatus. |
| justification | |
| It is extremely important to regard the combination of machine or apparatus with computer, another network or programmable apparatus, together with the appropriate programs, as a patentable 'new article' . The criterion for such a 'new article' should include new, hitherto unknown, useful features in these combinations of apparatus plus computer plus program. | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that a computer-implemented invention may be claimed only as a product, that is a programmed device, or as a technical production process. |
| justification | |
| This is 1st reading article 7.1; it guarantees that only technical inventions can be claimed. | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that a computer-implemented invention may be claimed only as a product, that is a programmed device, or as a technical production process. |
| justification | |
| By definition, a process carried out by a computer corresponds to the computer programs run on that computer. It must be ensured that claims will apply only to technical inventions that can be implemented under computer control and not simply to the computer programs used for such control (or when they are run on an ordinary desktop computer not being used to control a technical invention).
This amendment corresponds to Article 7(1) of the consolidated text resulting from the EP first reading. | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that 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. |
| justification | |
| Software in combination with generic computing equipment is still not more than software (as such). Suggestions that software can be patentable are outside the scope of this article and should be avoided.
This amendment roughly corresponds to article 7.1 in the consolidated text of the EP’s first reading (except that "implemented" has been replaced with "aided", "device" with "apparatus" and "technical production" has been deleted from "technical production process". | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that 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. |
| justification | |
| Software in combination with generic computing equipment is still not more than software (as such). Suggestions that software can be patentable are outside the scope of this article and should be avoided.
This amendment roughly corresponds to article 7.1 in the consolidated text of the EP’s first reading (except that "implemented" has been replaced with "aided", "device" with "apparatus" and "technical production" has been deleted from "technical production process". | |
| amendment | |
| Member States shall ensure that a computer-implemented invent ion may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software. | Member States shall ensure that 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. |
| justification | |
| Software in combination with generic computing equipment is still not more than software (as such). Suggestions that software can be patentable are outside the scope of this article and should be avoided. | |
| amendment | |
| Member States shall ensure that the distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent. | |
| justification | |
| Freedom of publication, as stipulated in Art 10 ECHR, can be limited by copyright but not by patents. Patent rights are broad and unsuited for information goods. This amendment does not make any patents invalid, rather it limits the ways in which a patent owner can enforce his patents. Such a provision should be complemented by other provisions which make sure that information patents are not granted in the first place.
This amendment is a simplified and reduced version of article 7 paragraph 3 in the consolidated text of the EP’s first reading. | |
| amendment | |
| Member States shall ensure that the distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent. | |
| justification | |
| Freedom of publication, as stipulated in Art 10 ECHR, can be limited by copyright but not by patents. Patent rights are broad and unsuited for information goods. This amendment does not make any patents invalid, rather it limits the ways in which a patent owner can enforce his patents. Such a provision should be complemented by other provisions which make sure that information patents are not granted in the first place.
This amendment is a simplified and reduced version of article 7 paragraph 3 in the consolidated text of the EP’s first reading. | |
| amendment | |
| Member States shall ensure that whenever a patent claim names features that imply the use of a computer program, an well-functioning and well-documented program text shall be published as part of the patent description without any restricting licensing terms. | |
| justification | |
| A program listing is an excellent means of describing to a skilled person what a computer-aided process does. This amendment ensures that the obligation of disclosure is taken seriously, and that software is treated as a means of describing the invention, rather than as an invention in itself. The Commission's objection that patent law does not normally require the disclosure of a full reference implementation does not apply, because this amendment does not ask for a reference implementation but only for an accurate description.
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 in advance what is theoretically possible 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 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 roughly corresponds to article 7 paragraph 5 in the consolidated text of the EP’s first reading (it’s been made more clear that only an example must be provided). | |
| amendment | |
| Member States shall ensure that whenever a patent claim names features that imply the use of a computer program, an well-functioning and well-documented program text shall be published as part of the patent description without any restricting licensing terms. | |
| justification | |
| A program listing is an excellent means of describing to a skilled person what a computer-aided process does. This amendment ensures that the obligation of disclosure is taken seriously, and that software is treated as a means of describing the invention, rather than as an invention in itself. The Commission's objection that patent law does not normally require the disclosure of a full reference implementation does not apply, because this amendment does not ask for a reference implementation but only for an accurate description.
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 in advance what is theoretically possible 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 roughly corresponds to article 7 paragraph 5 in the consolidated text of the EP’s first reading (it’s been made more clear that only an example must be provided). | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A claim to a computer program, as the major provision of the invention, cannot apply to a computer programme on its own or on a carrier. Member States shall ensure that a patent claim for a computer-implemented invention shall lead to a change in the state of the art. |
| justification | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A claim to a computer program product, on its own or on a carrier shall be allowed only if the invention realised by a computer program would, when loaded or run on a computer, computer network or other programmable apparatus, have an antecedent main claim in the same patent with a product or process claim as described in Article 5.1. |
| justification | |
| An inventive product which can be realised by a computer program must be able to be distributed by carrier. | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. |
| justification | |
| It is contradictory to say that computer programs at the same time cannot be inventions, and saying that they nevertheless can be claimed in a patent. Additionally, the condition after the "unless" in the Council version can always be fulfilled.
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). | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. |
| justification | |
| It is contradictory to say that computer programs at the same time cannot be inventions, and saying that they nevertheless can be claimed in a patent. Additionally, the condition after the "unless" in the Council version can always be fulfilled.
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). | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. |
| justification | |
| Self-explanatory. | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. |
| justification | |
| This is 1st reading article 7.1 ; it specifies that a computer program cannot be claimed either on its own or on any carrier : that would be tantamount to allowing software patentability on the basis of considering that software can possess patentable technical features. The programme claims are considered as patents on software as such, therefore these should not be included in this Directive. | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | A patent claim to a computer program, either on its own or on a carrier, shall not be allowed. |
| justification | |
| It is contradictory to say that computer programs at the same time cannot be inventions, and saying that they nevertheless can be claimed in a patent. Additionally, the condition after the "unless" in the Council version can always be fulfilled.
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). | |
| amendment | |
| 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 programmable computer, programmable computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1. | 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 effect a product or process claimed for the invention in accordance with paragraph 1. |
| justification | |
| authorises claims to computer programs on their own, under a condition which is always true. The reasoning is self contradictory: the only way to "make clear that the program on its own cannot be the object of claims" would be to disallow such claims. Lehne can't have his cake and eat it. | |
| amendment | |
| Member States shall ensure that the production, processing, dissemination and publication of information in any form cannot be the basis of direct or indirect breach of patent law, even if patented technical apparatus is used to this end. | |
| justification | |
| Restricting the exchange of information could impede the development of fundamental research. | |
| amendment | |
| Member States shall ensure that the production, handling, processing, distribution and publication of information in any form can never constitute a patent infringement, either direct or indirect, even if a technical device is used for this purpose | |
| justification | |
| This is 1st reading article 7.3 ; it aims at ensuring freedom of information. | |
| amendment | |
| Where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement. | |
| justification | |
| Only when software elements are used in the context of realising the computer-implemented invention the claims raised in accordance with paragraph 1 extend to the software and infringements may take place. This should not only be mentioned in Recital 17 but also in Article 5. | |
| amendment | |
| A claim described in Article 5.2 only gives protection for the use which is described in the respective patent. | |
| justification | |
| Complements the clearer wording of 5.2. | |
| amendment | |
| Member States shall ensure that using computer programs for purposes not contained in the scope of a patent claim cannot be taken as direct or indirect breach of patent law. | |
| justification | |
| amendment | |
| Member States shall ensure that the use of a computer program for purposes that do not belong to the scope of the patent cannot constitute a direct or indirect patent infringement. | |
| justification | |
| Only inventions can be patented. | |
| amendment | |
| Member States shall ensure that in the even of a patent claim relating to technical features which install computer program applications, full documentation of such program applications shall require that they be presented as part of the patent description and in the form of specific examples, not in the form of separate, main or even additional patent claims. | |
| justification | |
| On the one hand, we must ensure that writers of computer programs are given their author's rights and, on the other, prevent pseudo-invention by ensuring the disclosure of specific computer programs in patent submissions. | |
| amendment | |
| Member States shall ensure that the distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent. | |
| justification | |
| Freedom of publication, as stipulated in Art 10 ECHR, can be limited by copyright but not by patents. Patent rights are broad and unsuited for information goods. This amendment does not make any patents invalid, rather it limits the ways in which a patent owner can enforce his patents. Such a provision should be complemented by other provisions which make sure that information patents are not granted in the first place.
This amendment is a simplified and reduced version of article 7 paragraph 3 in the consolidated text of the EP’s first reading. | |
| amendment | |
|
Limitation of the effects of a patent
The rights conferred by patents for inventions within the scope of this Directive shall not extend to:
| |
| justification | |
| This proposal establishes that certain acts can be carried out safely with the peace of mind that they do not constitute patent infringement. In particular this applies to acts done privately or for experimental purposes, as long as they are not done commercially. Likewise academic and research use is immune if non-commercial. | |
| amendment | |
| Los Estados miembros garantizarán que la distribución y publicación de información, cualquiera que sea la forma, nunca constituya una violación directa o indirecta de una patente. | |
| justification | |
| Los términos de "distribución" y "publicación" tienen más en cuenta los casos de demandas de patentes para métodos comerciales (de hecho el tratamiento de la información) que existen en los Estados Unidos y que no deberían existir en la Unión Europea.
Esta enmienda corresponde a una versión más restrictiva del artículo 7 párrafo 3 en el texto consolidado de la primera lectura del PE con el objetivo de alcanzar un compromiso con el Consejo. | |
| amendment | |
| Los Estados miembros garantizarán que siempre que una reclamación de patentes indique características que impliquen el uso de un programa de ordenador, un buen funcionamiento y bien documentada referencia de aplicación de tal programa se publicará como parte de la descripción sin ninguna restricción a sus condiciones de licencia. | |
| justification | |
| Estas enmiendas, a pesar de lo que se pueda pensar, no sirven para promover los programas de red abierta sino para asegurar que la obligación de publicidad, que es inherente al sistema de patentes, se tome en serio y para que un programa informático esté, como cualquier otro objeto de información, en el lado revelado de la patente en vez de en su lado de exclusión /monopolio.
Esto hace un poco más difícil impedir que alguien haga cosas que ni siquiera ha hecho él mismo, pero que son obviamente posibles desde que el modelo de computación se definió perfectamente y se sabe siempre lo que se puede hacer con un ordenador. Obsérvese que esta enmienda no requiere que el código de fuentes para todos los programas del titular de la que usa estas características se revelen. Solamente tiene que proporcionar una única y simple aplicación de la funcionalidad que está monopolizando. Esta enmienda corresponde al artículo 7 párrafo 5 del texto consolidado de la primera lectura del PE. | |
| amendment | |
| Les Etats membres veillent à ce que, lorsque le recours à une technique brevetée est nécessaire afin d'assurer l'interopérabilité entre deux systèmes ou réseaux informatiques différents, cela dans le cas où il n'existe pas d'alternative technique non brevetée aussi efficace permettant d'obtenir l'interopérabilité entre les deux systèmes, ni ce recours, ni le developpement, l'expérimentation, la fabrication, la vente, la cession de licences, ou l'importation de programmes mettant en oeuvre cette technique brevetée ne soient considérés comme une contrefaçon de brevet. | |
| justification | |
| La préservation de l'interopérabilité suppose la capacité, non seulement de pouvoir le cas échéant effectuer des opérations de rétro-ingéniérie pour déterminer les caractéristiques des protocoles et interfaces de communication avec lesquelles il s'agira de communiquer, mais également de pouvoir réaliser et commercialiser effectivement de tels produits interopérables.
L'article 6.2, autorisé par l'article 30 de l'accord ADPIC, est nécessaire pour empêcher de possibles graves distorsions de la concurrence sur le marché intérieur du fait que la mise sur le marché de produits interopérables constituerait toujours une contrefaçon des revendications d'un brevet. | |
| amendment | |
| Member States shall ensure that, wherever the use of a patented technique is necessary in order to ensure interoperability between two different computer systems or networks, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available, such use is not considered to be a patent infringement, nor is the development, testing, making, offering for sale or license, or importation of programs making such use of a patented technique to be considered a patent infringement. | |
| justification | |
| Article 6 of the Council only refers to the exemption provided for by the copyright directive; this means that a developer is allowed to use reverse engineering to make his software interoperable with that of a competitor but afterwards he needs to be able to distribute, sell and use the interoperable software he developed. | |
| amendment | |
| Member States shall ensure that whenever it is necessary to use a patented technology solely to ensure the conversion of standards used in two different data processing systems in order to ensure communication and data exchange, such use is not considered breach of patent. | |
| justification | |
| amendment | |
| |
| justification | |
| A compulsory license subject to Art. 31 TRIPs ensures access to interoperability technology, an incentive to innovate because the patentee receives an adequate remuneration, an incentive to early publication of new technology because patenting still makes sense and an adequate remuneration for the patentee thereby balancing the public interests above with the patentee's private interest.
Paragraph 3 ensures that a dominant player cannot force somebody else to waive his patent rights. | |
| amendment | |
| Member States shall ensure that, wherever the use of a patented technique is necessary in order to ensure interoperability between two different computer systems or networks, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available, such use is not considered to be a patent infringement, nor is the development, testing, making, offering for sale or license, or importation of programs making such use of a patented technique to be considered a patent infringement. | |
| justification | |
| It is necessary to have the interoperability exception in articles. | |
| amendment | |
| |
| justification | |
| This amendment aims at keeping interoperability as one of the cornerstones of the information and communications technology. Electronic products need to be able to communicate and interoperate.
To strike the proper balance between the rights of the patent owner to enjoy the full benefits of the patent, the third party´s interest to develop interoperating products, as well as the public interest to prevent unjustified monopolies on standards. | |
| amendment | |
| Member States shall ensure that, where the use of an interface, which is protected by a patent for a computer-implemented invention, is indispensable for the sole purpose of ensuring interoperability, such as to ensure conversion of the conventions used in two different computer systems or network in order to allow communication and exchange of data content between them, this use of the interface is not considered to be a patent infringement. | |
| justification | |
| Where an interface protected by a patent is necessary to allow interoperability, the use of the interface cannot be regarded as a matter of patent infringement. | |
| amendment | |
| Member States shall ensure that wherever an interface which is protected by a patent for a computer-implemented invention is indispensable for the sole purpose of ensuring interoperability such as to ensure conversion of the conventions used in two different computer systems or network in order to allow communication and exchange of data content between them, the use of the interface is not considered to be a patent infringement. | |
| justification | |
| Where an interface protected by a patent is necessary to allow interoperability, the use of the interface cannot be regarded as a matter of patent infringement. | |
| amendment | |
| Die Mitgliedstaaten stellen sicher, dass in allen Fällen, in denen der Einsatz einer patentierten Technik für die Konvertierung der in mindestens zwei verschiedenen Computersystemen verwendeten Konventionen unverzichtbar ist, um die Kommunikation und den Austausch von Dateninhalten zwischen den Computersystemen zu ermöglichen, einem Lizenzsucher dieser patentierten Technik ein Anspruch auf Einräumung einer Lizenz zu angemessenen Bedingungen (Zwangslizenz) gegenüber dem Rechteinhaber zusteht. Die Regelungen des TRIPS-Übereinkommens bleiben unberührt. | |
| justification | |
| amendment | |
| Member States shall ensure that wherever the use of a patented technique is needed for the sole purpose of ensuring interoperability of two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement. Member States must ensure that the court may require a patent owner to grant a licence for such use having regard to the public interest in permitting access to the patented technique, provided that a licence is not otherwise available for such use on reasonable and non-discriminatory terms and conditions. | |
| justification | |
| Interoperability must be ensured in articles and it should not be considered as patent infringement. | |
| amendment | |
|
Interoperability exception
The developing, testing, making, using, offering for sale or license, selling, licensing, or importing of a patented computer-implemented invention shall not require the authorisation of the patent owner, to the extent that use of the patented computer-implemented invention is indispensable to achieve the interoperability of the computer program with one or more other computer programs, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available. The exceptions set out in this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the right holders legitimate interests or unreasonably conflicts with a normal exploitation of the computer implemented invention, taking account of the legitimate interests of third party software developers to achieve interoperability and of end-users to have access to interoperable programs systems and networks and the need to use data on different computer systems. | |
| justification | |
| Ensures compatibility with the software copyright directive and ensures users have access to interoperable programme systems and networks. | |
| amendment | |
| Member States shall ensure that, wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different data processing systems so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement. | |
| justification | |
| Interoperability of data processing systems (e.g. computers) lies at the foundation of the information economy and allows for fair competition by all players large and small.
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 ("data processing systems" 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 expression "for the sole purpose" 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). | |
| amendment | |
| Member States shall ensure that, wherever the use of a patented technique is needed for the sole purpose of ensuring conversion of the conventions used in two different data processing systems so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement. | |
| justification | |
| Interoperability of data processing systems (e.g. computers) lies at the foundation of the information economy and allows for fair competition by all players large and small.
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 ("data processing systems" 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 expression "for the sole purpose" 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). | |
| amendment | |
|
Pubblicità
I contenuti del contratto di brevetto dovranno essere condivisi attraverso adeguati strumenti di pubblicità. | |
| justification | |
| Il riconoscimento della tutela in cambio della condivisione della conoscenza, principio fondante del "contratto" di brevetto, per essere realizzato necessita di strumenti adeguati di pubblicità/condivisione, che nel caso del software oggi non esistono e non sono previsti nella proposta di Direttiva. Ciò tenderà inevitabilmente a svantaggiare le PMI del settore e a creare un ulteriore ampliamento del contenzioso. | |
| amendment | |
| Los Estados miembros garantizarán que, donde quiera que el uso de una técnica patentada sea necesaria, con el único propósito de asegurar la conversión de los convenios utilizados en dos sistemas diferentes de procesamiento de datos a fin de permitir la comunicación y el intercambio entre ellas del contenido de sus datos, tal uso no sea considerado una violación de patente. | |
| justification | |
| La interoperabilidad de los sistemas de procesamiento de datos (como, por ejemplo, los ordenadores) subyace a la economía de la información y permite la competencia leal por todos los operadores grandes y pequeños.
El artículo 6 del texto del Consejo solamente hace referencia a la exención prevista por la directiva de los derechos reservados. Esto significa que se permite a un creador de programas informáticos descubrir cómo hacer interoperable su sistema de procesamiento de datos con el de un competidor, pero no puede más tarde utilizar el conocimiento adquirido, puesto que éste podría estar cubierto por patentes. Esta enmienda asegura que las patentes tampoco puedan ser utilizadas para impedir la interoperabilidad. Esto se aprobó de una forma casi idéntica por ITRE y JURI antes de la primera lectura(la segunda parte subrayada decía La mención "el único propósito" hace referencia al espíritu de la versión original ITRE/JURI de esta enmienda. | |
| amendment | |
| |
| justification | |
| Esta enmienda intenta resolver el problema que puede presentarse cuando sea necesario el acceso al sistema lógico de interconexión de una invención aplicada a través de ordenador para permitir la interoperabilidad.
Debe garantizarse el acceso cuando el uso de la invención aplicada a través de ordenador es indispensable para la interoperabilidad pero solo si no hay otra alternativa disponible. En caso de interconexión patentada es necesario conseguir un equilibrio entre el derecho del dueño de la patente a disfrutar del beneficio completo de la patente y los intereses de terceros de utilizar la invención para producir productos interoperables. | |
| amendment | |
| La Commissione osserva gli effetti delle invenzioni attuate per mezzo di elaboratori elettronici sull'innovazione e sulla concorrenza, in Europa e sul piano internazionale, e sulle imprese europee, compreso il commercio elettronico. | La Commissione osserva gli effetti delle invenzioni attuate per mezzo di elaboratori elettronici sull'innovazione e sulla concorrenza, in Europa e sul piano internazionale, e sulle imprese europee, in particolare sulle Piccole e Medie Imprese, compreso il commercio elettronico. |
| justification | |
| Visto e considerato che l’economia europea si basa, in maniera particolare, sulla rete di piccole e medie imprese, che fanno della qualità dei propri prodotti un vantaggio competitivo, e che le stesse potrebbero subire negativamente l’attuazione della direttiva in oggetto, appare corretto intervenire per controllare i possibili effetti sfavorevoli che si avranno nel tessuto economico e produttivo degli Stati membri. | |
| amendment | |
| The Commission shall monitor the impact of computer-implemented inventions on innovation and competition, both within Europe and internationally, on Community businesses, especially small and medium-sized enterprises, on the open-source community and on electronic commerce. | The Commission shall monitor the impact of computer-implemented inventions on innovation and competition, both within Europe and internationally, on Community businesses, especially small and medium-sized enterprises, on the open-source community and on electronic commerce, in particular from the aspect of employment in small and medium-sized enterprises. |
| justification | |
| The Commission has to monitor the impact of computer-implemented inventions not only on the aspect of innovation and competition but from the aspect of employment, especially in small and medium-sized enterprises which could be affected negatively, and which take a very important part in the employment situation of the EU, in connection with one of the EU's main priorities, the Lisbon Strategy. | |
| amendment | |
The Committee shall in particular:
| |
| justification | |
| This amendment relates to Article 10 (Monitoring) adopted by the European Parliament during First Reading.
Currently, SMEs participate actively in Europe’s CII patents system. Indeed, SMEs represent the majority of applicants for CII patents. To ensure ongoing and active participation by SMEs -- and to provide opportunities to enhance their involvement -- this amendment proposes the creation of a committee focused on SME-related issues, with a mandate to recommend necessary reforms. | |
| amendment | |
| The Commission shall conduct a feasibility study looking to the establishment of a Fund for small and medium-sized enterprises to provide financial, technical and administrative support to small and medium-sized enterprises dealing with issues related to the patentability of computer-implemented inventions. | |
| justification | |
| This amendment proposes that the European Commission studies the possibility of an "SME Fund" to assist SMEs in fully participating in, and benefiting from, the computer-implemented invention patent regime. | |
| amendment | |
| The Commission shall report to the European Parliament and the Council by*...... on:
... 5 years after the date of entry into force of this Directive |
The Commission shall report to the European Parliament and the Council by*...... on:
... 3 years after the date of entry into force of this Directive |
| justification | |
| It is necessary to set a clear deadline for the Commission report, but also for the first review of the Directive in accordance with article 9. The timeframe of 5 years should be split into two so that the Commiccion effectively reports to the European Parliament and the Council by three years and reviews the Directive by five years after entry into force. | |
| amendment | |
| The Commission shall report to the European Parliament and the Council by*... on: | The Commission shall report to the European Parliament and the Council within three years from the date specified in Article 9(1) at the latest on: |
| justification | |
| The foreseen possibility of monitoring and reporting on the effects of the directive seems to be absolutely ineffective on the software market. To the three years of monitoring, in fact, two additional years have to be added for the transposition in the Member states, and one minimum year necessary for a revision of the act. This timetable seems to be incompatible with the dynamicity of this market. | |
| amendment | |
| participation by small- and medium-sized enterprises in the patent system for computer-implemented inventions. Such report shall include data, to the extent available, regarding applicants for and recipients of patents for computer-implemented inventions; | |
| justification | |
| This amendment relates to Article 10 (Monitoring) adopted by the European Parliament during First Reading.
Existing statistics demonstrate fairly broad participation in the CII patents process by SMEs. However, there is consensus among all interested parties that additional and more comprehensive statistical data on CII patents would be welcomed. The above amendment would ensure that such data is compiled. | |
| amendment | |
| participation by small- and medium-sized enterprises in the patent system for computer-implemented inventions. Such report shall include data, to the extent available, regarding applicants for and recipients of patents for computer-implemented inventions; | |
| justification | |
| This amendment relates to Article 10 (Monitoring) adopted by the European Parliament during First Reading.
Existing statistics demonstrate fairly broad participation in the CII patents process by SMEs. However, there is consensus among all interested parties that additional and more comprehensive statistical data on CII patents would be welcomed. The above amendment would ensure that such data is compiled. | |
| amendment | |
| whether the rules governing the term of the patent and the determination of the patentability requirements, and more specifically novelty, inventive step and the proper scope of claims are adequate, and whether it would be desirable and legally possible having regard to the Community's international obligations to make modifications to such rules; | whether the rules governing the term of the patent and the determination of the patentability requirements, and more specifically novelty, inventive step and the proper scope of claims are adequate; |
| justification | |
| Last part of the Common position text is not necessary. | |
| amendment | |
| the aspects in respect of which it may be necessary to prepare for a diplomatic conference to revise the European Patent Convention; | |
| justification | |
| Not necessary in this article. | |
| amendment | |
| the aspects in respect of which it may be necessary to prepare for a diplomatic conference to revise the European Patent Convention; | |
| justification | |
| The aim of the present Directive is not to modify the European Patent Convention neither to legalize patents on software, therefore there is no need to envisage a modification of this Convention. | |
| amendment | |
| developments in the interpretation of the terms "technical contribution" and "inventive step" by patent offices and patent courts in the light of the future evolution of technology. | |
| justification | |
| Parliament and the Council should be informed about the practice of granting patents under this Directive. Special attention should be given to the interpretation of the most relevant legal definintions. | |
| amendment | |
| whether the option outlined in the Directive concerning the use of a patented invention for the sole purpose of ensuring interoperability between two systems is adequate; | |
| justification | |
| Self explanatory | |
| amendment | |
| the feasibility study looking to the establishment of a Fund for small and medium-sized enterprises. | |
| justification | |
| This amendment proposes that the European Commission studies the possibility of an “SME Fund” to assist SMEs in fully participating in, and benefiting from, the computer-implemented invention patent regime. | |
| amendment | |
|
Whether difficulties have been experienced arising from the grant of patents for computer-implemented inventions which do not comply with the statutory requirements for patentability both in terms of whether the invention
in accordance with Article 4.1 above, and as such should not have legitimately been granted. | |
| justification | |
| This amendment addresses the concerns that have been expressed about the grant of trivial, or undeserving, patents. It provides a new initiative for the Commission to report to the European Parliament and the Council on whether difficulties have been found in practice caused by patents that should not have legitimately been granted. This will encourage the European Patent Office and national Patent Offices to maintain the highest standards for examining patent applications, thus minimising the risk of undeserving patents being granted. | |
| amendment | |
| whether this Directive has performed the desired effects in terms of harmonisation and clarification of the legal rules governing the patentability of computer-implemented inventions. | |
| justification | |
| To provide an assessment whether the aims leading to the adoption of this Directive have been achieved. | |
| amendment | |
| the developments of the world-wide patent systems in the area of computer-implemented inventions in terms of the aspects mentioned in this article (a to d and f to gb). | |
| justification | |
| The evolution of the patent systems in other major jurisdictions, especially the possibility to have a world-wide patent system, should be closely monitored. | |
| amendment | |
| The Commission shall come forward within a year with a proposal for an effective European Community Patent there by allowing a democratic control by the European Parliament on the European Patent Office and the European Patent Convention. | |
| justification | |
| With a view to legal certainty and reaching the Lisbon objectives it is desirable that there is one single patent system across the European Union. | |
| amendment | |
The Council shall provide a yearly report to the European Parliament on the activities of representatives of Member States that are Contracting States to the European Patent Convention in the Administrative Council of the European Patent Organisation, and the progress that has been made to achieving the objectives set out in Article 8A.1 above. | |
| justification | |
| This amendment recognises that the Member States are also Contracting States of the European Patent Convention and that Member States have some influence the practice of the European Patent Office, specifically with respect to maintaining high standards of examining patent applications in particular with respect to inventive step and "technical contribution" as defined in this directive.
Furthermore, this amendment requires Member States (in Council) to report to the European Parliament each year on what they have actually done to influence the EPO in this regard and on the progress that has been made towards the goal of minimising the grant of undeserving patents. | |
| amendment | |
| In the light of the monitoring carried out pursuant to Article 7 and the report to be drawn up pursuant to Article 8, the Commission shall review the impact of this Directive and, where necessary, submit amending proposals to the European Parliament and the Council. | In the light of the monitoring carried out pursuant to Article 7 and the report to be drawn up pursuant to Article 8, the Commission shall review the impact of this Directive at latest 2 years after having submitted the report, and, where necessary, submit amending proposals to the European Parliament and the Council. |
| justification | |
| Self-explanatory. | |
| amendment | |
| The realisation of the internal market implies the elimination of restrictions to free circulation and of distortions in competition, while creating an environment which is favourable to innovation and investment. In this context the protection of inventions by means of patents is an essential element for the success of the internal market. Effective, transparent and harmonised protection of computer-implemented inventions throughout the Member States is essential in order to maintain and encourage investment in this field.
The realisation of the internal market implies the elimination of restrictions to free circulation and of unjustified distortions in competition, while creating an environment which is favourable to innovation and investment. In this context the protection of inventions by means of patents is one of the elements contributing to the success of the internal market. Appropriate, effective, transparent and harmonised protection of computer-assisted inventions throughout the Member States is essential in order to maintain and encourage investment in all technical fields involving the use of information technology. | |
| justification | |
| Distortions in competition are harmful only when they are unjustified. States may, within their competencies, make use of these, which is something that the Directive cannot prejudge.
The Directive covers the patentability of technical inventions assisted by information technology. | |
| amendment | |
| Differences exist in the protection of computer-implemented inventions offered by the administrative practices and the case law of the different Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market. | Differences exist in the protection of computer-assisted inventions resulting from the administrative practices and the case law of the different Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market. |
| justification | |
| See justification amendment on article 1. | |
| amendment | |
| Therefore, the legal rules governing the patentability of computer-implemented inventions should be harmonised so as to ensure that the resulting legal certainty and the level of requirements demanded for patentability enable innovative enterprises to derive the maximum advantage from their inventive process and provide an incentive for investment and innovation. Legal certainty will also be secured by the fact that, in case of doubt as to the interpretation of this Directive, national courts may, and national courts of last instance must, seek a ruling from the Court of Justice. | Therefore, the legal rules governing the patentability of computer-assisted inventions should be harmonised so as to ensure that the resulting legal certainty and the level of requirements demanded for patentability enable innovative enterprises to derive the maximum advantage from their inventive process and provide an incentive for investment and innovation. Legal certainty will also be secured by the fact that, in case of doubt as to the interpretation of this Directive, national courts may, and national courts of last instance must, seek a ruling from the Court of Justice. |
| justification | |
| See justification article 1. | |
| amendment | |
| The rules of the Convention on the Grant of European Patents signed in Munich on 5 October 1973, and in particular Article 52 thereof concerning the limits to patentability, should be confirmed and clarified. | |
| justification | |
| amendment | |
| The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to TRIPS, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-implemented inventions. | The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). |
| justification | |
| Self-explanatory. | |
| amendment | |
| The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-implemented inventions. | The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. This means that patentability must be effectively limited in terms of general concepts such as |
| justification | |
| It must be made clear that there are limits as to what can be subsumed under "fields of technology" according to Art 27 TRIPS and that this article is not designed to mandate unlimited patentability but rather to avoid frictions in free trade, which can be caused by undue exceptions as well as by undue extensions to patentability. This interpretation of TRIPS is indirectly confirmed by lobbying of the US government last year against Art 27 TRIPS, on the account that it excludes business method patents, which the US government wants to mandate by the new Substantive Patent Law Treaty draft.
In its first reading, Parliament deleted this recital, and therefore the amendment that proposed the above change was not voted upon. Deletion is better than keeping the original, but clarification regarding the applicability and interpretation of the TRIPs agreement is better. | |
| amendment | |
| The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-implemented inventions. | The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) 1. Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. This means that patentability must be effectively limited in terms of general concepts such as |
| justification | |
| It must be made clear that there are limits as to what can be subsumed under "fields of technology" according to Art 27 TRIPS and that this article is not designed to mandate unlimited patentability but rather to avoid frictions in free trade, which can be caused by undue exceptions as well as by undue extensions to patentability. This interpretation of TRIPS is indirectly confirmed by lobbying of the US government last year against Art 27 TRIPS, on the account that it excludes business method patents, which the US government wants to mandate by the new Substantive Patent Law Treaty draft.
In its first reading, Parliament deleted this recital, and therefore the amendment that proposed the above change was not voted upon. Deletion is better than keeping the original, but clarification regarding the applicability and interpretation of the TRIPs agreement is better. | |
| amendment | |
| La Comunidad y sus Estados miembros están obligados por el Acuerdo sobre los Aspectos de los Derechos de Propiedad Intelectual relacionados con el Comercio (ADPIC), aprobado mediante la Decisión 94/800/CE del Consejo, de 22 de diciembre de 1994, relativa a la celebración en nombre de la Comunidad Europea, por lo que respecta a los temas de su competencia, de los acuerdos resultantes de las negociaciones multilaterales de la Ronda Uruguay (1986-1994) 1. El apartado 1 del artículo 27 del acuerdo ADPIC establece que las patentes podrán obtenerse por todas las invenciones, sean de productos o de procedimientos, en todos los campos de la tecnología, siempre que sean nuevas, entrañen una actividad inventiva y sean susceptibles de aplicación industrial. Además, según este mismo artículo, las patentes se podrán obtener y los derechos de patente se podrán ejercer sin discriminación por el campo de la tecnología. En consecuencia, estos principios deben aplicarse a las invenciones implementadas en ordenador. | La Comunidad y sus Estados miembros están obligados por el Acuerdo sobre los Aspectos de los Derechos de Propiedad Intelectual relacionados con el Comercio (ADPIC), aprobado mediante la Decisión 94/800/CE del Consejo, de 22 de diciembre de 1994, relativa a la celebración en nombre de la Comunidad Europea, por lo que respecta a los temas de su competencia, de los acuerdos resultantes de las negociaciones multilaterales de la Ronda Uruguay (1986-1994) 1. El apartado 1 del artículo 27 del acuerdo ADPIC establece que las patentes podrán obtenerse por todas las invenciones, sean de productos o de procedimientos, en todos los campos de la tecnología, siempre que sean nuevas, entrañen una actividad inventiva y sean susceptibles de aplicación industrial. Además, según este mismo artículo, las patentes se podrán obtener y los derechos de patente se podrán ejercer sin discriminación por el campo de la tecnología. Esto significa que esa patentabilidad debe limitarse efectivamente a términos de conceptos generales tales como |
| justification | |
| Debe dejarse claro que hay límites en cuanto a lo que puede incluirse bajo | |
| amendment | |
| The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) 1. Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-implemented inventions. | The Community and its Member States are bound by the Agreement on trade-related aspects of intellectual property rights (TRIPS), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). Article 27(1) of TRIPS provides that 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. Moreover, according to that Article, patent rights should be available and patent rights enjoyable without discrimination as to the field of technology. These principles should accordingly apply to computer-assisted inventions. Nevertheless, the field of software is not considered to be a field of technology. |
| justification | |
| Patents are intended for inventions of a material nature. Copyright is intended for works of a conceptual nature, and this includes software. Software, like books, music or intellectual methods, is not therefore a field of technology within the meaning of TRIPS. | |
| amendment | |
| Con arreglo al Convenio sobre la concesión de patentes europeas, firmado en Munich el 5 de octubre de 1973, ("Convenio sobre la Patente Europea"), y las legislaciones sobre patentes de los Estados miembros, no se consideran invenciones, y quedan por tanto excluidos de la patentabilidad, los programas de ordenadores, así como los descubrimientos, las teorías científicas, los métodos matemáticos, las creaciones estéticas, los planes, principios y métodos para el ejercicio de actividades intelectuales, para juegos o para actividades económicas, y las formas de presentar informaciones. No obstante, esta excepción se aplica y se justifica únicamente en la medida en que la solicitud de patente o la patente se refiera a uno de esos elementos o actividades considerados como tales, porque dichos elementos y actividades como tales no pertenecen al campo de la tecnología. | Con arreglo al Convenio sobre la concesión de patentes europeas, firmado en Munich el 5 de octubre de 1973, ("Convenio sobre la Patente Europea"), y las legislaciones sobre patentes de los Estados miembros, no se consideran invenciones, y quedan por tanto excluidos de la patentabilidad, los programas de ordenadores, así como los descubrimientos, las teorías científicas, los métodos matemáticos, las creaciones estéticas, los planes, principios y métodos para el ejercicio de actividades intelectuales, para juegos o para actividades económicas, y las formas de presentar informaciones. Esta excepción se aplica porque dichos elementos y actividades no pertenecen al campo de la tecnología. |
| justification | |
| El artículo 52 EPC dice que los programas de ordenadores no son invenciones en el sentido de la legislación sobre patentes, es decir, que un sistema que consiste en un equipo informático genérico de ordenador y una cierta combinación de normas de cálculo que funcionan en él no son patentables. No dice que tales sistemas puedan patentarse declarándolos para ser "no como tal" o "técnico". La exclusión de programas para los ordenadores no es una excepción, es parte de la regla para definir qué es una "invención". | |
| amendment | |
| Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 (European Patent Convention) and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception, however, applies and is justified only to the extent that a patent application or patent relates to the above subject-matter or activities as such, because the said subject-matter and activities as such do not belong to a field of technology. | Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception applies because the said subject-matter and activities do not belong to a field of technology. |
| justification | |
| Art 52 EPC says that programs for computers etc are not inventions in the sense of patent law, i.e. that a system consisting of generic computing hardware and some combination of calculation rules operating on it can not form the object of a patent. It does not say that such systems can be patented by declaring them to be
This amendment corresponds to recital 7 in the consolidated text of the EP’s first reading. | |
| amendment | |
| Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 (European Patent Convention) and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception, however, applies and is justified only to the extent that a patent application or patent relates to the above subject-matter or activities as such, because the said subject-matter and activities as such do not belong to a field of technology. | Under the Convention on the Grant of European Patents signed in Munich on 5 October 1973 and the patent laws of the Member States, programs for computers together with discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, and presentations of information are expressly not regarded as inventions and are therefore excluded from patentability. This exception applies because the said subject-matter and activities do not belong to a field of technology. |
| justification | |
| Art 52 EPC says that programs for computers etc are not inventions in the sense of patent law, i.e. that a system consisting of generic computing hardware and some combination of calculation rules operating on it can not form the object of a patent. It does not say that such systems can be patented by declaring them to be "not as such" or "technical". This amendment reconfirms Art 52 EPC. Note that the exclusion of programs for computers is not an exception, it is part of the rule for defining what an "invention" is.
This amendment corresponds to recital 7 in the consolidated text of the EP’s first reading. | |
| amendment | |
| The aim of this Directive is to prevent different interpretations of the provisions of the European Patent Convention concerning the limits to patentability. The consequent legal certainty should help to foster a climate conducive to investment and innovation in the field of software. | The aim of this Directive is to prevent different interpretations of the provisions of the European Patent Convention concerning the limits to patentability. The consequent legal certainty should help to foster a climate conducive to investment and innovation in fields of technology as well as in the field of software. |
| justification | |
| The aim is not to legislate on the patentability of software, but on that of computer-controlled inventions. | |
| amendment | |
| Member states shall respect the provisions of this directive when acting in the framework of the European Patent Convention. | |
| justification | |
| This amendment recognises that the Member States are also Contracting States of the European Patent Convention and that Member States have some influence on the practice of the European Patent Office, specifically with respect to ensuring that the European Patent Office complies with this directive. | |
| amendment | |
| The European Patent Convention provides that the European Patent Office is supervised by the Administrative Council of the European Patent Organisation, and that the President of the European Patent Office is responsible for its activities to the Administrative Council. The Administrative Council is composed of representatives of the Contracting States of the European Patent Convention, a clear majority of which is formed by Member States. These representatives shall exercise such measures within their authority to achieve compliance by the European Patent Office with this directive. | |
| justification | |
| This amendment recognises that the Member States are also Contracting States of the European Patent Convention and that Member States have some influence the practice of the European Patent Office, specifically with respect to maintaining high standards of examining patent applications in particular with respect to inventive step and "technical contribution" as defined in this directive.
Furthermore, this amendment requires Member States (in Council) to report to the European Parliament each year on what they have actually done to influence the EPO in this regard and on the progress that has been made towards the goal of minimising the grant of undeserving patents. | |
| amendment | |
| La protección que otorgan las patentes permite a los innovadores beneficiarse de su creatividad. Los derechos de patente protegen la innovación en interés de toda la sociedad y no deberían utilizarse de forma anticompetitiva. | Las patentes son derechos temporales de exclusión concedidos por el Estado a los inventores para estimular progresos técnicos. Para asegurarse de que los trabajos del sistema pretendidos, las condiciones para conceder patentes y las modalidades para hacerlas cumplir deben ser delimitadas cuidadosamente, y, en especial, los corolarios inevitables del sistema de patentes tales como la restricción de la libertad creativa, legal, la inseguridad y los efectos contra la competencia deben ser mantenidos en límites razonables. |
| justification | |
| Los creadores de innovaciones pueden beneficiarse de su creatividad sin patentes. Si los derechos de patentes | |
| amendment | |
| Patent protection allows innovators to benefit from their creativity. Whereas patent rights protect innovation in the interests of society as a whole; they should not be used in a manner which is anti-competitive. | Patents are temporary exclusion rights granted by the state to inventors in order to stimulate technical progress. In order to ensure that the system works as intended, the conditions for granting patents and the modalities for enforcing them must be carefully designed. In particular, inevitable corollaries of the patent system such as restriction of creative freedom, users´rights or legal insecurity and anti-competitive effects must be kept within reasonable limits. |
| justification | |
| Innovators can benefit from their creativity without patents. Whether patent rights "protect" or stifle innovation and whether they act in the interests of society as a whole is a question that can only be answered by empirical study, not by statements in legislation. | |
| amendment | |
| Patent protection allows innovators to benefit from their creativity. Whereas patent rights protect innovation in the interests of society as a whole; they should not be used in a manner which is anti-competitive. | Patents are temporary exclusion rights granted by the state to inventors in order to stimulate technical progress. In order to ensure that the system works as intended, the conditions for granting patents and the modalities for enforcing them must be carefully designed. In particular, inevitable corollaries of the patent system such as restriction of creative freedom, users´ rights or legal insecurity and anti-competitive effects must be kept within reasonable limits. |
| justification | |
| Innovators can benefit from their creativity without patents. Whether patent rights | |
| amendment | |
| Patent protection allows innovators to benefit from their creativity. Patent rights protect innovation in the interests of society as a whole and should not be used in a manner which is anti-competitive. | Patents are temporary exclusion rights granted by the state to inventors in order to benefit from their creativity and to stimulate technical progress. In order to ensure that the patent rights protect innovation in the interest of society as a whole and the system works as intended, the conditions for granting patents and the modalities for enforcing them must be carefully designed. In particular, inevitable corollaries of the patent system such as restriction of creative freedom, users' rights or legal insecurity and anti-competitive effects must be kept within reasonable limits. |
| justification | |
| It is important to specify the temporary nature of patents and the system needed for enforcing them in a proper manner. | |
| amendment | |
| Patent protection allows innovators to benefit from their creativity. Patent rights protect innovation in the interests of society as a whole and should not be used in a manner which is anti-competitive. | Patent protection allows inventors to benefit from their creativity. Patent rights protect innovation in the interests of society as a whole and should not be used in a manner which is anti-competitive or excessively detrimental to the innovation derived there from. |
| justification | |
| Self explanatory. | |
| amendment | |
| De conformidad con la Directiva 91/250/CEE del Consejo, de 14 de mayo de 1991, sobre la protección jurídica de los programas de ordenador, cualquier forma de expresión de un programa de ordenador original estará protegida por los derechos de autor como obra literaria. No obstante, las ideas y principios en los que se basa cualquiera de los elementos de un programa de ordenador no están protegidos por los derechos de autor. | De conformidad con la Directiva 91/250/CEE del Consejo, de 14 de mayo de 1991, sobre la protección jurídica de los programas de ordenador, la propiedad en los programas de ordenador se adquiere mediante derechos reservados. Las ideas y los principios generales sobre las que se basa un programa de ordenador deben ser utilizables libremente, de modo que los diferentes creadores puedan obtener simultáneamente la propiedad en creaciones individuales basadas en ellas. |
| justification | |
| Los derechos reservados no sólo se aplican a los trabajos literarios, sino también a los libros de texto, manuales de operación, programas de ordenador y todas las clases de estructuras de información. Los derechos reservados son el sistema de "propiedad intelectual" para programas de ordenador y no son solamente un sistema para un aspecto lateral o "literario" de los programas de ordenador. Si los derechos reservados no cubren la "idea subyacente" de un libro o de un programa, no se trata de una indicación de una insuficiencia de derechos reservados sino de la necesidad de mantener libres las "ideas subyacentes" o conceptos generales, de modo que diversos creadores tengan ocasión de obtener la propiedad mediante trabajos individuales basados en éstos conceptos generales. | |
| amendment | |
| In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright. | In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, property in computer programs is acquired by copyright. General ideas and principles which underlie a computer program must stay freely usable, so that many different creators may simultaneously obtain property in individual creations based thereon. |
| justification | |
| Copyright does not only apply to literary works, but also to textbooks, operation manuals, computer programs and all kinds of information structures. Copyright is the system of "intellectual property" for computer programs, not only a system for a "literary" side aspect of computer programs.
If copyright does not cover the "underlying idea" of a book or a program then that is not an indication of an insufficiency of copyright but rather an indication of the need to keep "underlying ideas" (general concepts) free, so that many different creators have a chance to obtain property in individual works based on these general concepts. | |
| amendment | |
| In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright. | In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, property in computer programs is acquired by copyright. General ideas and principles which underlie a computer program must stay freely usable, so that many different creators may simultaneously obtain property in individual creations based thereon. |
| justification | |
| Copyright does not only apply to literary works, but also to textbooks, operation manuals, computer programs and all kinds of information structures. Copyright is the system of "intellectual property" for computer programs, not only a system for a "literary" side aspect of computer programs.
If copyright does not cover the "underlying idea" of a book or a program then that is not an indication of an insufficiency of copyright but rather an indication of the need to keep "underlying ideas" (general concepts) free, so that many different creators have a chance to obtain property in individual works based on these general concepts. | |
| amendment | |
| In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright. | In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, the expression in any form of an original computer program is protected by copyright as a literary work. However, ideas and principles which underlie any element of a computer program are not protected by copyright, because they are algorithms which are comparable to mathematical methods or methods of presenting information. |
| justification | |
| Rules for designing programs cannot be patentable as they are comparable to mathematical proofs. | |
| amendment | |
| A technical contribution is present if technical considerations contribute to the solution of a technical problem. A technical contribution is not present if the subject matter claimed in the patent solely consists of discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules and methods for performing mental acts, playing games or doing business, programs for computers, or presentations of information, without limitation to new, non-obvious and technical subject matter that can be made or used in any kind of industry. | |
| justification | |
| Clarification of "technical contribution". Whereas the positive definition of technical contribution is rather difficult and is necessarily open to interpretation, it is nevertheless important to make clear which interpretations of this term as not envisaged in the framework of this Directive. | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to the field of technology. | In order for any innovation to be considered a patentable invention it should have a technical character, and thus belong to a field of technology. In order to be patentable, inventions in general and inventions which can be realized by a computer program in particular must be susceptible of industrial application, new and involve an inventive step. |
| justification | |
| The references to industrial application and inventiveness are necessary for the technical aspect to be sufficiently highlighted. | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to the field of technology. | In order for any invention to be considered as patentable it should have a technical character, that is, it should apply to material systems such as structures and materials, as well as materials, substances and energy, and their manufacture and processing. |
| justification | |
| It is essential to define "technical character", as this concept is central to all the other technical or technological terms. The concept of "technology" is narrower than that of "technics" and is subsumed in the latter. Patentability under current patent law is concerned with material systems and the processes falling under the framework of these systems. Referring to a "field of technology" is obsolete and imprecise. | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to a field of technology. | In order for any invention to be considered as patentable it should have a technical character, and thus belong to a field of technology. It must also be capable of industrial application, be new, and involve an inventive step. |
| justification | |
| This amendment is a reminder of the conditions of patentability. | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to a field of technology. | In order for any innovation to be considered a patentable invention it should have a technical character, and thus belong to a field of technology. |
| justification | |
| The Council text is not in line with Art 52 EPC. Art 52(2) EPC lists examples of non-inventions. It is not permissible to subsume these under | |
| amendment | |
| In order for any invention to be considered as patentable it should have a technical character, and thus belong to a field of technology. | In order for any innovation to be considered a patentable invention it should have a technical character, and thus belong to a field of technology. |
| justification | |
| The Council text is not in line with Art 52 EPC. Art 52(2) EPC lists examples of non-inventions. It is not permissible to subsume these under "inventions" and then test their technical character. Moreover, while it can not be inferred from Art 52 EPC that all technical innovations are inventions, it can, based on a unanimous tradition of patent law, be assumed that all inventions have technical character. | |
| amendment | |
| Para que una invención se considere patentable, deberá tener carácter técnico y pertenecer, por tanto, a un campo de la tecnología. | Para que una innovación se considere patentable, deberá tener carácter técnico y pertenecer, por tanto, a un campo de la tecnología. |
| justification | |
| El texto del Consejo no coincide con el artículo 52 CEP. El artículo 52 (2) CEP enumera ejemplos de no invenciones. No procede incluir éstos bajo el concepto de "invenciones" para probar así su carácter técnico. Por otra parte, mientras que no puede deducirse del artículo 52 CEP que cualquier innovación técnica sea invención, sí se puede asumir, basándonos en una tradición unánime del derecho de patentes, que todas las invenciones tienen carácter técnico. | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | |
| justification | |
| Esta enmienda fue incorporada de su propia cosecha por el Consejo. Intenta ahondar aún más en el concepto de la OEP "contribución técnica del escalón de invención". | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | All inventions must meet the requirement of making a technical contribution to the state of the art. The technical contribution must be new and not obvious to specialists in the given technical field. If it makes no technical contribution, the solution is not patentable, because there is no inventive step. |
| justification | |
| All inventions must meet the requirement of making a technical contribution to the state of the art. The technical contribution must be new and not obvious to specialists in the given technical field. If it makes no technical contribution, the solution is not patentable, because there is no inventive step. | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of art. | In order to be patentable, inventions in general and inventions which can be realised by a computer program (computer implemented inventions) in particular must be susceptible of industrial application, new and involve an inventive step. In order to involve an inventive step, computer implemented inventions must in addition make a new technical contribution to the state of the art. |
| justification | |
| Clarification of the text | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | It is a condition for inventions in general that they must make a technical contribution to the state of the art. The technical contribution must be new and not obvious to the person skilled in the art. If there is no technical contribution, there is no patentable subject matter and no invention. |
| justification | |
| This amendments was newly inserted by the Council. It attempts to further codify the EPO’s "technical contribution in the inventive step" doctrine. What one invents is his contribution to the state of the art, and for this contribution to be patentable it has to (among other things) involve an inventive step. Not the other way round.
The justification for the replacement text is the same as the one for article 2 (b) (amendment 4) | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | It is a condition for inventions in general that, in order to involve an inventive step, they should show a significant difference between the overall technical characteristics in the patent claim and the state of the art. |
| justification | |
| This definition of an inventive step is tautological, as any technical contribution already involves an inventive step. | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | It is a condition for inventions in general that they must make a technical contribution to the state of the art. The technical contribution must be new and not obvious to the person skilled in the art. If there is no technical contribution, there is no patentable subject matter and no invention. |
| justification | |
| This amendments was newly inserted by the Council. It attempts to further codify the EPO’s "technical contribution in the inventive step" doctrine. What one invents is his contribution to the state of the art, and for this contribution to be patentable it has to (among other things) involve an inventive step. Not the other way round.
The justification for the replacement text is the same as the one for article 2 (b) (amendment 4). | |
| amendment | |
| It is a condition for inventions in general that, in order to involve an inventive step, they should make a technical contribution to the state of the art. | It is a condition for inventions in general that, in order to involve an inventive step, they should make a new technical contribution to the state of the art. |
| justification | |
| Self-evident | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | If a computer-implemented invention is not technical in nature, then it does not satisfy the criterion of being an inventive step and therefore shall not be patentable. |
| justification | |
| It is necessary to make clear the cohesion between recital 13 and recitals 11 and 12. | |
| amendment | |
| Accordingly, although a computer implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention in the sense of the patent law. |
| justification | |
| Clarification of the text. The Council proposal is misleading. | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention within the meaning of patent law. |
| justification | |
| When judging the patentability of an invention, patent offices have always made a clear distinction between criteria of technical expertise and inventive step. Absence of technical expertise will mean that the patent will not be granted, regardless of any inventive step criterion. If this were not the case, any purely new invention would pass the test of inventiveness, which could lead to a considerable reduction in the quality of patents granted. The amendment is a reminder of the method used to assess technical expertise. | |
| amendment | |
| En consecuencia, si bien una invención implementada en ordenador pertenece a un campo de la tecnología, si no aporta una contribución técnica al estado de la técnica, como sería el caso, por ejemplo, si su contribución específica careciera de carácter técnico, la invención no implicará actividad inventiva y no podrá ser patentable. | En consecuencia, una innovación que no aporte una contribución técnica al estado de la técnica, no se considerará una invención en el sentido del derecho de patentes. |
| justification | |
| El texto del Consejo define los requisitos de los programas de ordenador para ser invenciones técnicas. Retira el requisito independiente de la invención ("contribución técnica") y lo fusiona en el carácter no obvio de "paso inventivo". Esto lleva a incoherencias y consecuencias prácticas indeseables. | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention in the sense of the patent law. |
| justification | |
| Self-explanatory. | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention within the meaning of patent law. |
| justification | |
| The Council text declares computer programs to be technical inventions. It removes the independent requirement of invention ("technical contribution") and merges it into the requirement of non-obviousness ("inventive step"). This leads to theoretical inconsistency and undesirable practical consequences, as explained in detail in the justification of the amendment to article 4.
This amendment corresponds to recital 14 in the consolidated text of the EP’s first reading. | |
| amendment | |
| Accordingly, although a computer-implemented invention belongs to a field of technology, where it does not make a technical contribution to the state of the art, as would be the case, for example, where its specific contribution lacks a technical character, it will lack an inventive step and thus will not be patentable. | Accordingly, an innovation that does not make a technical contribution to the state of the art is not an invention within the meaning of patent law. |
| justification | |
| The Council text declares computer programs to be technical inventions. It removes the independent requirement of invention ("technical contribution") and merges it into the requirement of non-obviousness ("inventive step"). This leads to theoretical inconsistency and undesirable practical consequences, as explained in detail in the justification of the amendment to article 4.
This amendment corresponds to recital 14 in the consolidated text of the EP’s first reading. | |
| amendment | |
| The mere implementation of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method, data processing method or other method, in which the only contribution to the state of the art is non-technical, cannot constitute a patentable invention. | Accordingly, whilst computer-controlled inventions belong to a technical field, because their technical contribution lies outside the software that controls them, implementation on an apparatus such as a computer of an otherwise unpatentable method, such as a business method, data-processing method or any other method, in which the contribution to the state of the art is not technical in nature, cannot under any circumstances be considered a technical contribution. Accordingly, such an implementation cannot under any circumstances constitute a patentable invention. |
| justification | |
| The initial wording is open to misunderstanding, as it implies that there could be a contribution to the state of the art that is not technical. It is important to distinguish what is technical from what is not. | |
| amendment | |
| The mere implementation of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method, data processing method or other method, in which the only contribution to the state of the art is nontechnical, cannot constitute a patentable invention. | The mere application of an otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method, data processing method or other method of a non-technical nature cannot constitute a patentable invention. |
| justification | |
| This statement is cohesive in relation to those included in recitals 11,12 and 13 and is a specific repetition. | |
| amendment | |
| Data processing in the sense of the directive does not cover the identification of physical effects and their conversion into data. | |
| justification | |
| The method of data processing does not cover the interfaces referred to in the Recital which belong to a field of technology. | |
Data processing does indeed not cover the physical phenomena that are represented by data and, since data processing has become an important antonym to "technology", it would be appropriate to say in the directive what it covers and what not. However the approach chosen here is unclear and inadequate.
| amendment | |
| If the contribution to the state of the art relates solely to unpatentable matter, there can be no patentable invention irrespective of how the matter is presented in the claims. For example, the requirement for technical contribution cannot be circumvented merely by specifying technical means in the patent claims. | If the contribution to the state of the art relates solely to unpatentable matter, there can be no patentable invention irrespective of how the matter is presented in the claims. For example, the requirement for technical contribution cannot be circumvented merely by specifying technical means in the patent claim. |
| justification | |
| A contribution to the state of the art must by definition be technical in nature. | |
| amendment | |
| Además, un algoritmo es esencialmente no técnico, por lo que no puede constituir una invención técnica. No obstante, un método que comprenda el uso de un algoritmo puede ser patentable siempre que dicho método se utilice para resolver un problema técnico. Sin embargo, una patente concedida por un método de estas características no debe permitir que se monopolice el propio algoritmo o su uso en contextos no previstos en la patente. | |
| justification | |
| La naturaleza del problema resuelto debería ser irrelevante para la patentabilidad. Lo que cuenta es la naturaleza de la solución. No se inventan los problemas sino las soluciones. Y la invención debe ser técnica o bien tener carácter técnico. | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Thus, an algorithm or computer program, which are inherently non-technical, can never be regarded as inventions. A computer-controlled technical procedure might be patentable to the extent that this process has characteristics which make it a technical contribution. However, any patent granted for such a process may not establish a monopoly on the algorithm or the program itself, as programs as such cannot be patentable, as stated in particular in Article 52(2)(c) of the European Patent Convention. |
| justification | |
| The original wording is incomplete, as it does not state that the method in question must be a technical process. It should not be concluded from this that non-technical methods, such as business or mathematical methods, could be patentable. | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. |
| justification | |
| The nature of the problem solved should be irrelevant to patentability. It’s the nature of the solution that counts. Problems are not invented, but solutions are, and it’s the invention that must be technical (or have technical character). | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. |
| justification | |
| Computer programs have their own algorithms indicating the sequence of individual steps in the presentation of information, that is, they are part of the theory and, as such, without appropriate reference to the material system, but not the computer, they cannot be submitted for patent. The nature of the statement included in recital 16 is to stress the intention that only new theoretical solutions in the form of programs combined with useful apparatus (not a computer) or material process can constitute a new article linked to a possible patent. | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. |
| justification | |
| The nature of the problem solved should be irrelevant to patentability. It’s the nature of the solution that counts. Problems are not invented, but solutions are, and it’s the invention that must be technical (or have technical character).
This was a new recital from the Council. | |
| amendment | |
| Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. Nonetheless, a method involving the use of an algorithm might be patentable provided that the method is used to solve a technical problem. However, any patent granted for such a method should not monopolise the algorithm itself or its use in contexts not foreseen in the patent. | Furthermore, an algorithm is inherently non-technical and therefore cannot constitute a technical invention. |
| justification | |
| The nature of the problem solved should be irrelevant to patentability. It’s the nature of the solution that counts. Problems are not invented, but solutions are, and it’s the invention that must be technical (or have technical character).
This was a new recital from the Council. | |
| amendment | |
| Methods for processing data represented in digital form are by their very nature algorithms and are therefore inherently non-technical. On the other hand, if information from the physical world is not captured in order to be represented digitally, a physical process for processing such information in hardware could have a technical character. | |
| justification | |
| The dividing line between the material and immaterial world, and hence between what is patentable and what is not, can be defined with legal certainty. Once a physical signal is digitised, it becomes symbolic information, which can be manipulated in an abstract fashion in software, with no possible technical effect. A technical effect can be observed only in the case of signals of a nature capable of producing the desired effect, whilst a digital signal may be stored and processed independently of the technologies used to represent it. | |
| amendment | |
| The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-implemented inventions should be claimed at least with reference to either a product such as a programmed apparatus, or to a process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement. | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-assisted inventions should be claimed only with reference to either a product such as a programmed apparatus, or to a technical process carried out in such an apparatus. |
| justification | |
| As software is not patentable, a patent cannot be infringed by the use of software under any circumstances. Patent claims may refer only to technical devices or processes, regardless of whether software is used to control the process claimed. | |
| amendment | |
| The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawing. Computer-implemented inventions should be claimed at least with reference to either a product such as a programmed apparatus, or to a process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement. | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawing. |
| justification | |
| Self-explanatory | |
| amendment | |
| Member States shall ensure that the description shall disclose the invention as claimed in such terms that the technical solution can be understood, and state any advantageous effects of the invention with reference to the background art. | |
| justification | |
| This amendment further clarifies what has to be disclosed in a patent application. In particular, the patent application has to explain the technical problem that the invention is seeking to overcome, and its solution, in a way that can be understood. It also has to describe any advantages, if there are any, that the invention brings over and above what has been done before. | |
| amendment | |
| Member States shall ensure that the description shall disclose the invention as claimed in such terms that the technical problem and its solution as well as the inventive step can be understood. | |
| justification | |
| This amendment further clarifies what has to be disclosed in a patent application. In particular, the patent application has to explain the technical problem that the invention is seeking to overcome, and its solution, in a way that can be understood. | |
| amendment | |
| It would aid in the diffusion of information and the establishment of a comprehensive database of prior art, if patent applicants could, where feasible, but independently of the need for the purposes of sufficiency of disclosure to do so, file with each patent application relating to a computer-implemented invention a well-functioning and well documented reference implementation of a program suitable for use in implementing the invention, which can be made available to the public at the same time as the publication of the description. | |
| justification | |
| Transparent reference implementation, where feasible, helps the information diffusion. | |
| amendment | |
| The legal protection of computer-implemented inventions does not necessitate the creation of a separate body of law in place of the rules of national patent law. The rules of national patent law remain the essential basis for the legal protection of computer-implemented inventions. This Directive simply clarifies the present legal position with a view to securing legal certainty, transparency, and clarity of the law and avoiding any drift towards the patentability of unpatentable methods such as obvious or non-technical procedures and business methods. | The legal protection of computer-assisted inventions does not necessitate the creation of a separate body of law in place of the rules of national patent law. The rules of national patent law remain the essential basis for the legal protection of computer-assisted inventions. This Directive simply clarifies the present legal position with a view to securing legal certainty, transparency, and clarity of the law and avoiding any drift towards the patentability of unpatentable methods, in particular inherently non-technical methods such as algorithms, software, data processing methods or teaching or business methods. |
| justification | |
| Self-explanatory. | |
| amendment | |
| De acuerdo con las previsiones del ADPIC, cualquier excepción al disfrute de los derechos de patente no debería ser interpretada de forma que permita su aplicación para ser utilizado de manera que perjudique de forma no razonable al propietario de los derechos o que de forma no razonable entre en conflicto con la explotación normal de la invención aplicada a través de ordenador, teniendo en cuenta los legítimos intereses de otros creadores de programas informáticos para conseguir la interoperabilidad y la de los usuarios finales para tener acceso a sistemas y redes con programas interoperables y a ser capaces de utilizar los datos sobre diferentes sistemas de ordenadores. | |
| justification | |
| Esta enmienda supone que es el dueño de la patente quien tiene que probar que la excepción para el pleno disfrute de los derechos de su patente. El riesgo de que cualquier persona pueda simplemente ignorar una patente reclamando que es de aplicación esta excepción queda mitigado por la capacidad del dueño de la patente de iniciar una acción convencional por infracción si cree que las estrictas condiciones de esta excepción no son aplicables. El tribunal competente podría considerar entonces la aplicación de la excepción a las circunstancias del caso, de acuerdo con las previsiones del ADPIC, incluso si la excepción entra en conflicto, de forma no razonable, con la explotación normal de la invención. | |
| amendment | |
| This Directive should be limited to laying down certain principles as they apply to the patentability of such inventions, such principles being intended in particular to ensure that inventions which belong to a field of technology and make a technical contribution are susceptible of protection, and conversely to ensure that those inventions which do not make a technical contribution are not susceptible of protection. | |
| justification | |
| Similarly to Council recital 13, this amendment claims that there are non-technical inventions. See the justification under the amendment to recital 13 for more information.
This was a new recital from the Council. | |
| amendment | |
| This Directive should be limited to laying down certain principles as they apply to the patentability of such inventions, such principles being intended in particular to ensure that inventions which belong to a field of technology and make a technical contribution are susceptible of protection, and conversely to ensure that those inventions which do not make a technical contribution are not susceptible of protection. | |
| justification | |
| Similarly to Council recital 13, this amendment claims that there are non-technical inventions. See the justification under the amendment to recital 13 for more information.
This was a new recital from the Council. | |
| amendment | |
| La presente Directiva debe limitarse al establecimiento de determinados principios aplicables a la patentabilidad de este tipo de invenciones. Dichos principios pretenden garantizar que las invenciones que pertenezcan a un campo de la tecnología y aporten una contribución técnica puedan ser objeto de protección y que, por el contrario, aquellas invenciones que no aporten una contribución técnica no lo sean. | |
| justification | |
| Del mismo modo que la enmienda al considerando 13, esta enmienda reivindica que hay invenciones no técnicas. | |
| amendment | |
| The competitive position of Community industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-implemented inventions are eliminated and the legal situation is transparent. With the present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the Community, the importance of intellectual property protection and in particular patent protection is self-evident. | The competitive position of Community industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-assisted inventions are eliminated and the legal situation is transparent. The present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the Community, as well as the requirements for sustainable and balanced development, are factors to be taken into consideration when choosing an appropriate level of intellectual property protection and in particular patent protection for technical inventions and copyright protection for software. The level of this protection, as well as the monopolistic effects it might create, should be determined in a manner that competition and cross-fertilisation which are the key to the development of innovative small and medium-sized enterprises in the European Union with easy market access; such enterprises will be the guarantors of the future competitiveness of the Community. |
| justification | |
| Self-explanatory. | |
| amendment | |
| The competitive position of Community industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-implemented inventions are eliminated and the legal situation is transparent. With the present trend for traditional manufacturing industry to shift their operations to low-cost economies outside the Community, the importance of intellectual property protection and in particular patent protection is self-evident. | The competitive position of Community industry in relation to its major trading partners will be improved if the current differences in the legal protection of computer-implemented inventions are eliminated and the legal situation is transparent. |
| justification | |
| Self-evident. | |
| amendment | |
| Small- and medium-sized enterprises are essential to the economic success and global competitiveness of the European Union and its Member States. Intellectual property rights benefit small and medium-sized enterprises just as they do larger entities. To ensure that this Directive advances the interests of SMEs, a Committee on Technological Innovation in the Small- and Medium-sized Enterprise Sector should be formed. This Committee should focus on patent-related issues relevant to such enterprises and should bring these issues to the attention of the Commission as necessary. | |
| justification | |
| This amendment relates to Article 10 (Monitoring) adopted by the European Parliament during First Reading.
Currently, SMEs participate actively in Europe’s CII patents system. Indeed, SMEs represent the majority of applicants for CII patents. To ensure ongoing and active participation by SMEs—and to provide opportunities to enhance their involvement—this amendment proposes the creation of a committee focused on SME-related issues, with a mandate to recommend necessary reforms. | |
| amendment | |
| This Directive should be without prejudice to the application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of patented technique which is needed for the sole purpose of ensuring conversion of the conventions used in two different computers systems or networks so as to allow communication and exchange of data content between them. | This Directive should be without prejudice to the application of the competition rules, in particular Articles 81 and 82 of the Treaty. |
| justification | |
| More concise drafting appropriate to selectively define the purpose of Articles 81 and 82. | |
| amendment | |
| This Directive should be without prejudice to the application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of a patented technique which is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them. | The provisions of this Directive are without prejudice to the application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of a patented technique which is needed to ensure conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them. |
| justification | |
| Interoperability, i.e. the possibility of conversion of convention between 2 systems is a key element to prevent monopoles. | |
| amendment | |
| This Directive should be without prejudice to the Application of Articles 81 and 82 of the Treaty, in particular where a dominant supplier refuses to allow the use of a patented technique which is needed for the sole purpose of ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them. | The provisions of this Directive are without prejudice to the application of Articles 81 and 82 of the Treaty. |
| justification | |
| Self-explanatory | |
| amendment | |
| Patents play an important role in European innovation. To ensure effective functioning of the patent system, it is important to monitor developments in this sector, including developments involving patents on computer-implemented inventions. To this end, relevant data should be gathered and appropriate reports produced. Such reports should include information pertaining specifically to participation by small- and medium-sized enterprises in the system of patents for computer-implemented inventions. | |
| justification | |
| This amendment relates to Article 10 (Monitoring) adopted by the European Parliament during First Reading.
Existing statistics demonstrate fairly broad participation in the CII patents process by SMEs. However, there is consensus among all interested parties that additional and more comprehensive statistical data on CII patents would be welcomed. The above amendment would ensure that such data is compiled. | |
| amendment | |
| The dominant supplier shall not be able to refuse to allow the use of a patented technique which is needed for the sole purpose of ensuring interoperability of two different computer systems or networks so as to allow communication and exchange of data content between them. | |
| justification | |
| Self-explanatory. | |
| amendment | |
| The rights conferred by patents granted for inventions within the scope of this Directive should not affect acts permitted under Articles 5 and 6 of Directive 91/250/EEC, in particular under the provisions thereof in respect of decompilation and interoperability. In particular, acts which, under Articles 5 and 6 of Directive 91/250/EEC, do not require authorisation of the rightholder with respect to the rightholder's copyrights in or pertaining to a computer program, and which, but for those Articles, would require such authorisation, should not require authorisation of the rightholder with respect to the rightholder's patent rights in or pertaining to the computer program. | The rights conferred by patents granted for inventions within the scope of this Directive should not affect acts permitted under Articles 5 and 6 of Directive 91/250/EEC, in particular under the provisions thereof in respect of decompilation and interoperability. In particular, acts which, under Articles 5 and 6 of Directive 91/250/EEC, do not require authorisation of the rightholder with respect to the rightholder's copyrights in or pertaining to a computer program, and which, but for those Articles, would require such authorisation, should not require authorisation of the rightholder with respect to the rightholder's patent rights in or pertaining to the computer program. Moreover, where it is necessary to make use of a patented technique to ensure conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use should not be considered as an infringement of patent. |
| justification | |
| This addition makes it possible to maintain interoperability. | |
| amendment | |
| Since the objective of this Directive, namely to harmonise national rules on the patentability of computer-implemented inventions, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. | Since the objective of the proposed action, namely to harmonise national rules on the patentability computer-assisted inventions, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of this action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. |
| justification | |
| Idem justification article 1. | |
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