Der TRIPs-Vertrag und Softwarepatente

Artikel 27 wird seit Mitte der 90er Jahre regelmäßig von Patentjuristen zitiert, um für einen Universalitätsanspruch des Patentwesens und insbesondere eine Ausweitung des Patentschutzes auf Computerprogramme und andere immaterielle Gegenstände zu argumentieren.

Hierzu bemerkte Paul Hartnack, Comptroller General des Britischen Patentamtes, 1997 bei der Londoner Anhörung über Softwarepatentierung:

Bei der Ratifizierung von GATT/TRIPs wies der Deutsche Bundestag ausdrücklich darauf hin, das zwischen PatG §1 und TRIPs Art 27(1) kein Konflikt bestehe.

In einer Entscheidung von 2000, in der es einen Anspruch auf ein Computer-Programm zurückweist, widerlegt das Bundespatentgericht nebenbei auch die TRIPs-Lüge:

The Federal Patent Court here refers to the Dispositionsprogramm doctrine, according to which the presence or not of controllable forces of nature in the solution of the problem is the only usable criterion for delimiting the realm of patentable inventions. According to this doctrine, data processing is not a field of technology, as Gert Kolle, the leading scholar of the time on this question, explains in his much-cited analysis of the Dispositionsprogramm decision in 1977:

This is exactly what the European Parliament has stated in its amended directive proposal:

It should be noted that the text explicitely encourages differing interpretations of some of the abstract terms used therein, such as "non-obviousness" and "industrial application".

While the paragraph forbids "discrimination" in the interest of free and equal trading conditions, it does not mandate a specific invention concept. It could however be construed to favor an invention concept which is favorable to free trade and economic development and in which the terms "technology", "industry" etc are not empty words.

Even within the realm of patentable "technology", Art 27(1) can hardly be interpreted as a rigid framework that outlaws all fine-tuning. If it was to be interpreted in this rigid way, as some patent lawyers propose, U.S. law would fall afoul of TRIPs in at least four areas: pharmaceuticals [35 USC 155,156, term extensions; 35 USC 271(e), experimental use]; biotechnology processes [35 USC 103(b), providing special non-obviousness standard]; medical and surgical procedures [35 USC 287(c), limiting remedies], and methods of doing business [35 USC 273(a)(3), providing prior user rights].

This clause is cited by patent owner lobbies whenever anyone tries to restrict the rights of patent owners, no matter whether in "reasonable" or "unreasonable" ways.

siehe Interoperabilität und die Softwarepatent-Richtlinie: Welche Schranken sind Erforderlich?

The treaty drafters were aware of these problems. In the General Provisions, they included articles such as the following:

Gleichzeitig ist zu fragen, ob die Beanspruchung immaterieller Gegenstände aus dem Bereich der Programmlogik, der Kommunikationsschnittstellen und der Organisationsmethoden nicht dazu geeignet ist, Handelsbarrieren aufzubauen, die im Gegensatz zum Geist von TRIPs und anderen Freihandels-Abkommen stehen.

TRIPs provides meta-rules for patent law, designed to promote free trade and reduce the leverage of governments in favoring domestic industries over foreign ones. It says something about how laws should be structured, e.g. "no discrimination in favor of specific local industries", "no arbitrary limitation on enforcability". It thereby encourages limitations that are based on systematic considerations, e.g. weighing patentee rights against other rights of equal weight, such as copyright property (Art 10 TRIPs), freedom of publication (Art 10 European Convention of Human Rights ECHR) or the right of access to communication standards.

It is very important for any patent law project to concretise the abstract rules of the TRIPs treaty. Any law project that fails to do so can not be claimed to serve the purpose of clarification.

While economic policies should be justified in terms of the abstract concepts laid down in TRIPs, they can not be derived from TRIPs alone.

It is poor draftsmanship to copy&paste abstract doctrines from TRIPs into European laws, which are supposed to provide guidance at a more concrete level. Art 52(1) EPC was revised in this ill-advised way by the Diplomatic Conference of 2000, and the European Parliament's rapporteur on the software patent directive project, Arlene McCarthy MEP, proposed to directly write Art 30 TRIPs into Art 6a of the Directive. Such actions do not only make make the proposed laws unclear. They also deprive European of maneuvering freedom in future renegotiations of TRIPs, which may well be needed in order to keep the TRIPs framework workable at all.

TRIPs was negotiated by delegations that represented the dominant interests of another era. Software was largely considered unpatentable, and opensource development and distribution was almost unknown. TRIPs should be interpreted in a way that does not benefit some production technologies, business models, and industries at the expense of others. The important thing is to enhance productivity in all industries.

Many limits of the TRIPs system, at least in its more rigid interpretations, have become so apparent, that even the Americans, who were the chief promoters of the TRIPs treaty, are tailoring it to their advantage and thereby arguably violating some of its provisions.

There is now a lot less worry that the US might make a complaint about any aspects of the patent system in the EU, because the EU would hit straight back with complaints about US preference in the US patent system.

Any judgments coming out of such a row would be likely to open a sufficient number of politically difficult issues on both sides of the Atlantic that nobody wants to go there.

Computer programs, as described in program claims granted by the EPO since 1998, are information structures, consisting of symbolic entities only. Any "technical character" which they might have can be found only on the meaning side of the symbolic entities. Likewise one could speak of the "technical character" of a set of chemical formulas, of a collection of construction drawings or even of a science-fiction novel, and empower every patent owner to monopolise the distribution of any information which describes his "invention".

However the EPO does not go as far as this. Instead it creates a special class of "inventions" which can be claimed in the form of information structures. These structures, since 2000 called "computer-implemented inventions" by the EPO, can be appropriated both by copyright and by patents.

Computer programs are thus "protected as literary works" (i.e. subjected to copyright), as stipulated by Art 10 TRIPs, and, in addition, patentable as technical inventions.

This alone is arguably a violation of TRIPs. Normally one intellectual achievement should not fall under two different regimes at the same time, and Art 10 states that computer programs fall under copyright. If they are "protected both as literary works and as inventions" then they are in effect no longer "protected as literary works", since it is a characteristic of copyrighted works that the ideas embodied therein remain free. If both copyright and patents apply to software, property that was acquired one regime is exposed to devaluation by the other.

The EPO and the European Commission have still gone further in violating TRIPs.

Starting from the creation of a special class of "computer-implemented inventions" which can be claimed in a special, usually impermissible way (namely in the form of an information structure describing the "invention"), they have endeavored to create a body of sui generis software patent law.

In 2000, both the EPO and the European Commission quickly adopted the doctrines of a new decision by the EPO's Technical Board of Appeal, called Controlling Pension Benefits System. This decision establishes special rules for examining the technical character of "computer-implemented inventions", such as assessing the "claim as a whole" rather than the achievement behind this claim, thereby making any computer program pass the requirement of technical invention, and, instead of this voided requirement, establishing a new requirement of "technical contribution in the inventive step", which has no basis in Art 27 TRIPs.

The Working Party of the Council of the European Union went even one step further in its secret papers of November 2002 and January 2004. They leave it to the patent applicant to decide which of the two regimes he wants to see applied to his achievement: the standard doctrines of patent law or the sui generis doctrines for "computer-implemented inventions".

By contrast, the European Parliament has proposed to clarify TRIPs by stating, inter alia, that data processing (informatics) is not just another discipline applied natural science ("field of technology") but rather a layer of abstraction, applicable to all fields of natural as well as social science. These clarifications beautifully integrate Art 10, Art 27 and the EPC. The Parliament's proposals are ignored and unreasonably discredited by the community of patent administrators and corporate patent lawyers, which is, as of spring 2004, continuing to monopolise the decisionmaking at the European Patent Office (EPO), the European Council (Consilium) and the European Commission (CEC).

In summary it can be said that the European patent establishment is

1. refusing to clarify and concretise the meaning of the TRIPs treaty;
2. wrongly equating the TRIPs treaty with "US practise", using threats of alleged TRIPs-incompatibility for purposes of fostering Fear, Uncertainty and Distrust (FUD);
3. trying to impose a sui generis software patent regime on Europe which is incompatible with the TRIPs treaty.