|Schar 1998||Laat 2000||Schiuma 2000|
Schiuma, a young patent attorney and research fellow at the Max Planck Institute for International Patent Copyright and Competition Law and discussion leader of the MPI's software patent workgroup, champions the well-known TRIPs fallacy and, in the process, tells us a lot of interesting details about how the patent lobby managed to pretend that granting of software patents was legal.
Schiuma's argumentation is built on a mixture of quotations from legal documents and personal political views, such as the assumption that regional legal definitions of "field of technology", "invention", "industrial application" etc should be avoided and a uniform global legal definition must be attempted. According to Schiuma's view, the object of the TRIPs treaty is "reducing distortions and impediments to international trade" and the non-uniformity of patent law regarding software is such a distortion.
This is one of many unreflected assumptions that make much of Schiuma's argumentation circular: Schiuma attempts to prove that the European software exclusion is not within the scope of variability allowed by TRIPs. So he first asserts that TRIPs must be construed so as to allow no variability.
It can however easily be argued that TRIPs is intended to "harmonise", as it was always called, not to "uniformise" the systems of various countries. It imposes more abstract rules such as that no country shall arbitrarily exclude any field of technolgy it happens to want to protect. These rules are intended to allow the coexistence of diverse systems while minimalising frictions that could arise from regional protectionism.
Moreover, even if variability is to be completely avoided, there is little reason to assume that the US view, which is also a regional one, must prevail. In fact there are, as shown below, reasons to criticise the US for non-compliance with Art 27 TRIPs.
Here is another example of the circularity of Schiuma's reasoning:
Even in light of the exceptions in Art.27(3) of TRIPs, it does not appear permissible to construe the term "inventions" in Art. 27(1) differently on a country-by-country basis by using the different legal definitions in the individual member states. Article 27(3) specifies definitely those areas of invention that a member can exclude from patentability. The attempt to expand artificially the areas of exclusion permitted by Art. 27(3) by using a "national" legal definition of the concept of the "invention" to exclude from patentability subject matter that is actually to be patented pursuant to Art. 27(1), would thus represent an attempt to evade Art. 27(3) and would lead to a conflict between the provisions of Art. 27(1) and (3).
Here Schiuma presupposes what he wants to prove: that software is "actually to be patented pursuant to Art. 27(1)" and that European national legislation is "artificially expanding the area of exclusion" by using a special "legal definition of the term invention". The opposite is true: the scope of what is "to be patented pursuant to Art 27(1)" cannot be determined without recourse to a "definition of the term invention".
Even if Art 27(3) is interpreted as an exhaustive list of subject matter that does not qualify as "field of technology" according to 27(1), such an exclusion list can not provide a definition of what is an "invention" in those "fields of technology" for which patents must "be available". Without such a definition, TRIPs would have to be interpreted as demanding the patentability of methods of business and social engineering, which again might run counter to basic principles of free trade into which the TRIPs treaty is embedded. Thus it is necessary, for an autonomous interpretation of TRIPs, to provide a consistent and sufficiently restrictive definition of the terms "technology" and "invention". The current US doctrines which Schiuma is advocating here fail to achieve this and could therefore be said to be in violation Art 27 TRIPs.
Schiuma proceeds to argue that patenting software is more in accordance with TRIPs than not patenting and therefore the whole world must uniformly patent software. This argumentation, as most legal argumenation contains a lot of personal politico-philosophical assumptions mixed with a complicated set of laws and caselaw. Here is an example of Schiuma's philosophy on software:
... no [ TRIPs negtioation group ] member equated or intended to equate software with mathematical methods or the like. This would also be in conflict with the nature of software, according to which specific (program) commands cause a physical change in specific elements of the computer. Accordingly, computer programs, i.e. software, are always of technical nature. In contrast, mathematical methods and scientific theories (as such) represent pure knowledge that causes no physical changes in its abstract form. Only the application of a mathematical method, for instance, in a particular field of technology (e.g. by means of a computer) causes a physical change and would thus be technical.
This is completely inevident. Software programs by themselves (i.e. when not running) also don't cause a physical change in any element of the computer. And even when running, the physical change is determined by the computer hardware and independent of the abstract idea that is claimed to be inventive. Software solutions are solution of problems within a mathematical model: the Turing machine. Thus software solutions are mathematical methods. The fact that the solution of a problem of Turing calculus (or other kinds of calculus) can be applied to a technical field does not make these solution technical ones.
There seems also to be a big non sequitur in the following paragraph:
Just as pharmaceutical and agrochemical products can be included within Art 27 of TRIPs without any difficulty, and thus can be ascribed to a "field of technology", software inventions can also be qualified as belonging to a "field of technology". Correspondingly, software cannot be excluded a priori from the "field of technology" and thus from Art 27(1).
According to European patent law, there are no software inventions, because "rules of organisation and calculation" i.e. "programs for computers" are already completed as problem solutions before, during their practial application on a conventional computer, the field of technology is touched upon.
Moreover, even if software "can" (or let's say "must") be qualified as a "field of technology", that does not imply that there are any technical inventions in this field, for which patents could be granted. It could just as well be true, that, as held by European patent law, all innovation in the field of "software technology" occurs in the realm of abstract "rules of calculation and organisation", i.e. non-inventions which are already completed as solutions to abstract problems of calculus before the realm of technology is touched upon.
Again there are big differences between "software" and other "fields of technology" such as pharmaceutics. Just to name a few:
The question of economic effect and desirability of software patenting does not appear in Schiuma's writing, but there is the assertion that software has become a "huge industry with an annual economic growth of 13pc" which "deserves equal protection" with other "fields of technology". Evidently, Schiuma knows somehow that the patent system is not an end in itself but a means for promoting economic progress. But his reasoning does not go beyond the level of postulating "equality". Moreover, there is no mention about any real-world cases where people have complained about inequal treatment. Schiuma's inequality is not a problem of injustice in real life but rather a problem of asymetry in Schiuma's explanation model.
In a comment on my article, Bernhard Lang pointed out:
But the law is here to express real world and social consensus. In the case of patents, it must be explained in terms of human rights, economic growth, social benefits, innovation incentives (in random order).
The job of Lawyers is syntax: to put the conclusion in usable wording, not to change or extend the semantics based on purely textual argumentation.
The first fallacy of Schiumain's rants is that he has no legitimity to begin with, as is the case for all layers when it comes to decide whether an existing law applies to a different subject matter.
This fallacy is the origin of many problems with the current changes in economics.
Lawyers are incompetent in both senses of the word:
But, like most, they want the power.
We should be careful not to give them legitimacy by arguing with them.
On the other hand we can use their arguments against them (as you most remarkably did).
During the process argumentation he finds some contradictions between TRIPs and software patenting and even contradictions between the EPC and the EPO's legal practice. He resolves all these by reference to his initially stated basic presumptions that the world's IP system must be uniformised on the basis of the dominant US practise. Again we have a mixture of caselaw with implicit more or less naive presumptions.
Schiuma's article can be quoted to support some of our criticism of the EPO.
In its ratification of GATT/TRIPs, the German legislature saw no conflict between Sec. 1(2)(3) and 1(3) of the Patent Act and Art. 27(1) of TRIPs...
Leaving aside this inaccuracy, the general criticism can, however, be raised that the German delegation's reply takes as its starting point the German/European interpretation of the concept of "in all fields of technology" in Art. 27(1) of TRIPs, which, as shown above, is inadmissible.
Within the meaning of Art. 27(1), software must be regarded both as an "invention" and as part of a "field of technology", with the result that the exclusion of software "as such" from patentability purssuant to Art. 52(2) and (3) of the EPC .. does not conform with TRIPs.
Even if a distinction is made between technical and non-technical software programs, the provisions of Art. 52(2)(c) and (3) of the EPC ... are incompatible with Art 27(1) of TRIPs, since the former exclude "programs for computers as such" entirely, i.e. irrespective of such a distinction between technical and non-technical programs.
The non-conformity of the provisions of the .. EPC with TRIPs in regard to software remains evident, for instance, from the decision "Computer-Related Invention/VICOM", in which one and the same technical constellation of facts was interpreted differently on the basis of different wording in the patent claims: on the one hand, a "process for the digital filtering of data" was regarded as a mathematical method or as a computer program "as such" and thus was not patentable, while at the same time a "procedure for the digital processing of images in the form of a data array" was regarded as patentable.
It appears doubtful whether such a value judgement would have been made in the same way if the prohibition on patents for computer programs "as such" contained in Art. 52(2)(c) and (3) of the EPC had not existed, since an improved "procedure for the digital filtering of data" (without restriction to the processing of images) can indeed be a technical contribution .. and thus be accessible to patent protection as a matter of principle.
The decision to classify GATT/TRIPs as community law or as international law continues to play a decisive role for its status in its relationship to German (domestic) law: if it is regarded as community law, it then takes priority, while it enjoys equal status if it need "only" be regarded as international law.
There continues to be disagreement concerning the direct applicability of the TRIPs provisions in the individual member states. On this point, the German legislature has assumed that TRIPs is directly applicable as a matter of principle.
In the present case .. direct applicability can, however, be excluded since Art. 27(1) of TRIPs is insufficiently clear and unconditional on the question of the patentability of software.
The European Patent Organisation is not a member of the WTO Agreement and thus not subject to any direct obligations deriving from GATT/TRIPs. It is true that all EPC member states, with the exception of Monaco, are members of the WTO, but TRIPs merely imposes the obligation to adapt national regulations and not any international agreements.
At present, there is no specific discussion of any change to the German Patent Act with respect to Art. 27(1) of TRIPs. On the other hand, the Standing Advisory Committee before the European Patent Office (At the insistence of Austria, Spain, Sweden, Switzerland and the "users of the system") has pointed out (at the 28th meeting in Munich on June 25-26 1998, cf the comment "Points for a revision of the EPC", CACEPO 2/98) that the provisions of Art. 52(2) of the EPC with respect to computer programs do not conform with Art. 27(1) of TRIPs, and should therefore be deleted.
According to Art. 64 of TRIPs, the Understanding on the Settlement for Disputes (Vereinbarung ueber Regeln und Verfahren zur Beilegung von Streitigkeiten) is applicable to TRIPs, with the result that a GATT Member can initiate dispute settlement proceedings before the WTO in order to reconcile the provisions of the German Patent Act concerning the patentability of software "as such" with Art. 27(1) of TRIPs. However, at present it is not possible for a natural or legal person to initiate such proceedings before the WTO. They can only institute domestic legal proceedings and persuade their government to initiate dispute settlement proceedings.
It would also be conceivable for an EU Member to invoke the European Court of Justice pursuant to Art 107 of the EC Treaty for an infringement of the obligation to implement EC law or secondary law by another Member. Proceedings on the infringement of the treaty can also be initiated by the European Commission according to Art 169 of the EC Treaty. However, both possibilities presuppose the competence of the European Community, which, according to Opinion 1/94 of the European Court of Justice, is divided with respect to GATT/TRIPs between the European Community and its member states, with the European Community enjoying jurisdiction in those areas in which it has applied harmonisation measures. In case of patent law, competence is held by the member states, since here, with the exception of a number of narrowly defined areas, no harmonisation has (as yet) taken place. If the European Communities should subsequently apply harmonisation measures (fn: The European Commission plans a Directive for harmonising the patentability of computer software inventions), the corresponding sector would fall within its competence.
The decision to classify GATT/TRIPs as community law or as international law continues to play a decisive role for its status in its relationship to German law: if it is regarded as community law, it then takes priority, while it enjoys equal stats if it need "only" be regarded as international law.
Alternatively the Preseident of the EPO has proposed to revise Art. 52(1)-(3) to read like Art. 27(1) of TRIPs, so that the exclusion list, according to Art. 52(2) and (3) of the EPC, would be completely deleted. On the other hand, the EPO will revise the examination guidelines for software-related inventions by including the interpretation of Art. 52(2) and 52(3) of the EPC according to decsisions T 935/97 and T 1173/97.
Schiuma concludes his article by stating the conclusion that he tried to argue for all the way along:
There is a binding obligation in Art. 27(1) of TRIPs to provide patent protection for "inventions .. in all fields of technology", whereby these terms must be construed autonomously on the basis of TRIPs, i.e. independently of national interpretation approaches.
As we have read above, TRIPs 27 contains no "obligation to construe these terms autonomously on the basis of TRIPs". And the German legislature doesn't see such an obligation in there either.
More important, such an autonomous interpretation of TRIPs would make it necessary for us to find a universal definition for the concepts of "technology", "invention" and "industrial application" which has a clear delimiting meaning. It has been convincingly argued that the European and Japanese traditional concept of "technical invention" as an "problem solution by application of natural laws" it the only possible such definition (see especially Dispositionsprogramm 1976 and Kolle 1977).
Apparently Schiuma and his mentors from MPI, AIPPI, WIPO and other organisations of the international patent movement already take it for granted that they are the world legislators who should, based on a superficial and arbitrary if not wrong textual intepretation of the TRIPs treaty, without any need of either legal systematisation or macro-economic justification, declare the legislative decisions of sovereign democracies and 100 years of customary patent law doctrine invalid and instead impose a vague system of unlimited patentability, based on recent regional specifics of the USA, on the rest of us.