The term "computer program" has mostly been used in this sense in the legal literature. For example, recent decisions of the Federal Court of Justice interpret "program for computers" as a "teaching directed toward data processing by means of a suitable computer. The EPO Examination Guidelines of 2000 make the matter even clearer"
Unfortunately this fact has been obfuscated by the ministerial patent officials of the Council, who are trying to interpret "computer program" as an individual instance of source or binary code which "can not constitute a patentable invention" simply because it doesn't fit into the context of patent claims.
see also Art 52 EPC: Interpretation and Revision
Some amendments propose to introduce a clarification in this sense as a new element in the directive, others propose to replace the Council's Art 4(2) with it. Art 4(2) represents the EPO's doctrine of further technical effect by which Art 52 was made meaningless in 1998. This is broken beyond repair and it is logically correct to replace it with an explanation of "program for computers" in the sense of the EPO's Guidelines. Whether this replacement occurs directly (as proposed by Kudrycka) or by deletion and insertion (as proposed by Kauppi) is a procedural technicality about which we have no particular preference.
| no. | submitted by | vote | critique |
|---|---|---|---|
| 31 | Rocard | o | The Council's text quotes much-abused wording from the EPC without concretising it. The amendment makes the situation even less clear by opposing "program as such" to "program on a carrier" and "program in the form of a signal", as if these were somehow different entities. On the other hand the intention to resolve the conflict with Council Art 5(2) and prevent program claims deserves support. |
| 97 | Ortega | + | The directive should clarify wordings such as "as such", rather than reiterate them in an unclarified form. |
| 99 100 101 | Kudrycka, Zwiefka; Bertinotti; Kauppi | ++ | It is a good idea to restate Art 52 EPC in the directive. As in the original, the "as such" phrase (Art 52.3) should be kept separate from the "programs are not inventions" phrase (Art 52.2), and it should be concretised separately. |
| 102 | Manders | - | The statement that computer programmers are unaffected serves no regulatory purpose. The appositive "as such" is used in a vague, misleading way. The only discernible meaning of the amendment seems to be to insult programmers as either uninnovative or law-ignorant or both. |
| 103 | Lichtenberger, Frassoni | o | An attempt to avoid the wordplays based on "computer program as such", but "content of computer program" is difficult to interpret in the context of patent claims, and the wording "cannot constitute an invention" still leaves open the interpretation that nothing is excluded because the excluded object belongs to a category that "can not" fit into the context of patent claims. |
| 104 105 106 | Kauppi; Kudrycka, Zwiefka; Bertinotti | ++ | definition of "computer program" is essential for clarification of Art 52 EPC and for delimiting the scope of exclusion of related terms such as "data processing". This provision could either be a new insertion (Kauppi) or a replacement of the Council's Art 4 par 2 (Kudrycka, Zwiefka; Bertinotti). |
| 107 | Szejna | o |
Good intentions, removes the Council's empty talk about "further technical effects", but retains some of its other key errors:
|
| 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 | |
| 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 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. | |
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