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Regulation about the invention concept of the European patent system and its interpretation with special regard to programs for computers

We propose that the legislator draft any regulations on the question of software patentability along the lines of the following short and clear text.
Led by the understanding that drawing the borderline between patentable and non-patentable objects requires particularly clear and explicit decisions at the legislative level;

impressed by the experience that Art 52 EPC has left room for misunderstandings and inconsistencies at the jurisdictional level;

concerned by the prospect that new rules created by various lawcourts could increasingly impede knowledge diffusion and innovation in the information society

we clarify the following:

  1. A "program for computers" or "computer program" is a calculation rule for a Turing machine or other abstract machine, which can be exressed at many design levels, from a conceptual plan to an instruction executable by a human or by a processor. A computer program is a building plan and an operating instruction, a description of a process and a solution to a problem, a literary work and a virtual machine, a product and a process, all in one.
  2. A program-controlled patentable process can be distinguished from the controlling computer program [as such]. In contrast, wordings such as "computer program with [further] patentable features" can only be understood to refer to a computer program [as such], possibly mingled with non-program elements whose patentability need to be examined separately. Art 52 (3) applies in an identical sense to all objects listed under (2).
  3. Computer Programs are not inventions in the sense of patent law. A program-controlled technical process (e.g. chemical process) can be a patentable invention. The exclusion rights derived from such an invention are limited to the industrial use of the process for production of material goods (e.g. chemicals). In no case may a patent claim be used to exclude anyone from creating, distributing, selling or executing a computer program.
  4. "Technology" refers to applied natural science or solving problems by utilising natural forces, or, according to a traditional definition: plan-conformant activity of using controllable natural forces to achieve a causally overseeable success which is, without mediation by human reason, the immediate result of controllable natural forces. An invention is a teaching about controllable cause-effect relations of natural forces. A teaching that contains both technical (physical, material) and mental (logical, immaterial) features is a invention only if the part that is claimed to be new and non-obvious, i.e. the core of the teaching, lies in the technical realm. Software innovations are already completed as self-contained problem solutions within an abstract machine before during their execution on a processor the technical realm is set foot upon. A technical process controlled by a computer program on known hardware embodies a patentable invention if and only if it uses natural forces in a new and non-obvious way to directly cause an advantageous transformation of material objects, such that the relation between cause and effect can be reliably validated only by experimentation with natural forces (empirical verification) and not by computational deduction from prior knowledge (mathematical proof).
[ Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention | Regulation about the invention concept of the European patent system and its interpretation with special regard to programs for computers | Security in Information Technology and Patent Protection for Software Products -- Expert Opinion by Lutterbeck et al written at the order of the German Ministery of Economics and Technology | Why are Software Patents so Trivial? | Ist das Software-Urheberrecht zu schwach? ]
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english version 2003/12/16 by PILCH Hartmut