Negative Definitions of "Technical" and "Field of Technology"

Negative definitions are very popular in lawmaking, because they are less pretentious and more time-enduring than positive definitions. Art 52 of the European Patent Conventions of 1973 uses the same approach: it defines what is not an invention in the sense of the law. After the introduction of new language by the Treaty on Trade-Related Aspects of Intellectual Property of 1994, the legislator now faces the task of translating this approach into new language, so as to clarify the relation between Art 52 EPC and Art 27 TRIPs. This can be understood to be the single most central problem to be solved by the present directive. The solution is to be found in one simple sentence: data processing is not a field of technology.

Data processing is an abstract endeavour: all data processing innovation is in the realm of logical abstraction. In the context of data processing, "technial" is therefore at best a synonym of "trivial". Failure to assert that data processing is not a field of technology in the sense of TRIPs means failure to do the legislator's most basic homework. Any attempt at positive definition that is not based on the recognition of this first simple negative definition will be muddled and half-hearted.

no.	submitted by	vote	critique
92 93 95 110	Mastenbroek, Lichtenberger; Bertinotti; Lichtenberger, Frassoni;	++	Needed translation of Art 52 EPC into the language of Art 27 TRIPs. If the directive had to consist in one phrase, this would be it.
193	Lichtenberger, Massoni	+	a useful clarification which recapitulates the important distinction between technology and data processing.
228	Lehne	-	Physical phenomena and data are not mutually convertible, and "identification" is a mental activity.

Amendment 92

submitted by:

Edith Mastenbroek, Evelin Lichtenberger

provision:

art 3 subpar 2 nov

language:

English

topic:

Negative Definitions of "Technical" and "Field of Technology"

recommendation:

++

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.

Critique

Needed translation of Art 52 EPC into the language of Art 27 TRIPs. If the directive had to consist in one phrase, this would be it.

Amendment 95

submitted by:

Fausto Bertinotti

provision:

art 3 subpar 2 nov

language:

English

topic:

Negative Definitions of "Technical" and "Field of Technology"

recommendation:

++

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.

Critique

Amendment 110

submitted by:

Evelin Lichtenberger, Monica Frassoni

provision:

art 4 par 2 a nov

language:

English

topic:

Negative Definitions of "Technical" and "Field of Technology"

recommendation:

++

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.

Critique

Amendment 193

submitted by:

Evelin Lichtenberger, Monica Frassoni

provision:

rec 8

language:

English

topic:

Negative Definitions of "Technical" and "Field of Technology"

recommendation:

++

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.

Critique

a useful clarification which recapitulates the important distinction between technology and data processing.

Amendment 228

submitted by:

Klaus-Heiner Lehne

provision:

rec 14 a nov

language:

English

topic:

Negative Definitions of "Technical" and "Field of Technology"

recommendation:

-

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.

Critique

Physical phenomena and data are not mutually convertible, and "identification" is a mental activity.

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.