Art 27 TRIPs requires the patentability of "products and processes". This deserves concretisation in EU law. Computer-aided inventions can, like other inventions, be claimed as products, i.e. apparatusses, and as processes executed on such apparatusses. This should be stated in the simplest possible terms. Statements as to whether software is patentable or not should not be piggybacked onto this provision. This provision's importance regarding software lies in the fact that the "product" in the sense of patent law is an appratus running a program, not the program as such. It can be inferred (and made explicit by an appropriate article 5(2)) that there is no such thing as a "computer program product" in patent law.
- submitted by:
- Michel Rocard
- provision:
- art 5 par 1
- language:
- French
- topic:
- Product and Process claims
- recommendation:
- +
| 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. |
Critique
The original provision defines the TRIPs term "products and processes" almost perfectly well. The only problem is that it, unnecessarily for this context, insinuates patentability of software. The amendment corrects this error and makes it excruciatingly clear that software is not meant.
- submitted by:
- Andrzej Jan Szejna
- provision:
- art 5 par 1
- language:
- Polish
- topic:
- Product and Process claims
- recommendation:
- +
| 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. |
Critique
is better than the Council version, but is overly specific (the inclusion of sensors, circuit breakers etc is just as unnecessary in this context as the Council's specification of computers, networks etc).
- submitted by:
- Evelin Lichtenberger, Monica Frassoni
- provision:
- art 5 par 1
- language:
- English
- topic:
- Product and Process claims
- recommendation:
- +
| 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. |
Critique
removes Council insinuations that software is patentable, but uses the term "computer-implemented invention", which itself implies patentability of software, and specifies more than needed by limiting claims to "production processes".
- submitted by:
- Manuel Medina Ortega
- provision:
- art 5 par 1
- topic:
- Product and Process claims
- recommendation:
- +
| 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. |
Critique
completely removes Council insinuations that software is patentable. specifies more than needed by limiting claims to "production processes".
- submitted by:
- Barbara Kudrycka, Tadeusz Zwiefka
- provision:
- art 5 par 1
- language:
- English
- topic:
- Product and Process claims
- recommendation:
- ++
| 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". |
Critique
removes unneeded insinuations about patentability of software from the otherwise correct approach of the Commission; refrains from adding new insinutations to the contrary: this article is only about the allowable claim types, not about patentability criteria.
- submitted by:
- Fausto Bertinotti
- provision:
- art 5 par 1
- language:
- English
- topic:
- Product and Process claims
- recommendation:
- ++
| 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". |
Critique
removes unneeded insinuations about patentability of software from the otherwise correct approach of the Commission; refrains from adding new insinutations to the contrary: this article is only about the allowable claim types, not about patentability criteria.
- submitted by:
- Piia-Noora Kauppi
- provision:
- art 5 par 1
- language:
- English
- topic:
- Product and Process claims
| 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. |
- submitted by:
- Evelin Lichtenberger, Monica Frassoni
- provision:
- rec 17
- language:
- English
- topic:
- Product and Process claims
| 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. |
- submitted by:
- Piia-Noora Kauppi
- provision:
- rec 17
- language:
- English
- topic:
- Product and Process claims
| 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 |
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