Text of the proposed EU patent directive [LWN.net]

Directive on the patentability of computer-implemented inventions

Article 1: Purpose

1. This Directive lays down rules for the patentability of computer-implemented inventions.

Article 2: Definitions

2a. "computer-implemented invention" means any invention in the sense of the European Patent Convention the performance of which involves the use of a computer, computer network or other programmable apparatus and having in its implementations one or more non-technical features which are realised wholly or partly by a computer program or computer programs, besides the technical features that any invention must contribute;

2b. "technical contribution", also called "invention", means a contribution to the state of the art in technical field which is not obvious to a person skilled in the art. The technical character of the contribution is one of the four requirements for patentability. Additionally, to deserve a patent, the technical contribution has to be new, non-obvious, and susceptible of industrial application.

2c. "technical field" means an industrial application domain requiring the use of controllable forces of nature to achieve predictable results. "Technical" means "belonging to a technical field". The use of natural forces to control physical effects beyond the digital representation of information belongs to a technical field. The processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes.

2d. "industry" in the sense of patent law means "automated production of material goods";

Article 3a: Fields of Technology

3a. Member states shall ensure that data processing is not considered to be a field of technology in the sense of patent law, and that innovations in the field of data processing are not considered to be inventions in the sense of patent law.

Article 4: Rules of Patentability

4.1. In order to be patentable, a computer-implemented invention must be susceptible of industrial application and new and involve an inventive step.

4.2. In order to involve an inventive step, a computer-implemented invention must make a technical contribution.

4.3. The significant extent of the technical contribution shall be assessed by consideration of the difference between the technical elements included in the scope of the patent claim considered as a whole and the state of the art.

4.3a. In determining whether a given computer-implemented invention makes a technical contribution, the following test shall be used: whether it constitutes a new teaching on cause-effect relations in the use of controllable forces of natures and has an industrial application in the strict sense of the expression, in terms of both method and result.

Article 4a: Exclusions from patentability

4a.1. 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 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.

4a.2. Member States shall ensure that computer-implemented solutions to technical problems are not considered to be patentable inventions merely because they improve efficiency in the use of resources within the data processing system.

Article 5: Form of Claims; and furher provisions

5. Member States shall ensure that a computer-implemented invention may be claimed only as a product, that is as a programmed device, or as a technical production process. A patent claim to a computer program, either on its own or on a carrier, shall not be allowed.

5a. Member States shall ensure that the production, handling, processing, distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose.

5b. Member States shall ensure that patent claims granted in respect of computer-implemented inventions include only the technical contribution which justifies the patent claim.

5c. Member States shall ensure that the use of a computer program for purposes that do not belong to the scope of the patent cannot constitute a direct or indirect patent infringement.

5d. Member States shall ensure that whenever a patent claim names features that imply the use of a computer program, a well-functioning and well documented reference implementation of such a program is published as part of the patent description without any restricting licensing terms.

Article 6: Interoperability

6. The rights conferred by patents granted for inventions within the scope of this Directive shall not affect acts permitted under Articles 5 and 6 of Directive 91/250/EEC on the legal protection of computer programs by copyright, in particular under the provisions thereof in respect of decompilation and interoperability.

6a. Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.

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What happens next:

Posted Sep 24, 2003 20:48 UTC (Wed) by coriordan (guest, #7544) [Link]

We all deserve a pint for what we've achieved, then it's back to work, albeit at a more relaxed pace.

The Council is made up of one Minister from each member state. The Minister is not a set position, each country chooses a relevent Minister for each meeting, so we don't know who we have to talk to yet.

Three things can happen:
a) They can accept the pre-amendment directive

If this happens, the procedure ends. No more voting, the (bad) directive gets adopted. This would kill us. We have to make sure the Council don't do this.

b) They can accept the directive with all amendments

If this happens, the procedure ends. No more voting, the (good) amended directive gets adopted. This is highly unlikely since after 78 amendments were adopted, the directive contradicts itself in places.

c) They can accept the directive with some amendments

If this happends, the semi-amended directive will return to the plenary for a "Second Reading". This is likely to happen but we must make sure it does happen, and that the spirit of the amendments remains intact. In the Second Reading, the plenary cannot suggest new amendments, it can only defend the ones it had already.

Ciaran O'Riordan

P.S. James, thanks for making this consolidated text available, I forwarded it to the fsfe-ie list but forgot to credit you, I'll make a note of it in my next post

What happens next:

Posted Sep 24, 2003 21:13 UTC (Wed) by sumC (subscriber, #1262) [Link]

Is it possible to see who voted against it?
I'm interested to see how the swedish MEP:s voted.

/Mats

voting results

Posted Sep 24, 2003 22:25 UTC (Wed) by coriordan (guest, #7544) [Link]

Here's a text version:
http://mond.at/swpat/voting.txt

It's probably not the format you want, the amendments are referenced by number so you'll want to crossreference it with the amendment texts: HERE (They are in OpenOffice's "MS Word" format)

Or you may find it quicker to crossreference with the FFII voting recommendations: HERE
Also, the MEPs are referred to by name and party, not nationality, so you might have to get their names from: HERE

Ciaran O'Riordan

What happens next:

Posted Sep 24, 2003 21:16 UTC (Wed) by phgrenet (subscriber, #5979) [Link]

Why do you say that the directive is bad as it is? It excludes patents on pure software and business methods. It just re-enforces Art. 52 of the EPC.

it's Good

Posted Sep 24, 2003 22:29 UTC (Wed) by coriordan (guest, #7544) [Link]

> Why do you say that the directive is bad as it is?

I didn't say it was bad. (?)

Are you refering to my comments about scenario (a)?

Scenario (a) is that the directive is adopted *without* the plenarys amendments, which is bad. The amemdments that the plenary adopted are great, couldn't be better, but the Council doesn't have to accept them.

What happens next:

Posted Sep 24, 2003 21:18 UTC (Wed) by j_heald (guest, #15398) [Link]

Ciaran wrote:

> This is highly unlikely since after 78 amendments were adopted, the
> directive contradicts itself in places.

Actually, what amazed me doing the consolidation was how *little* contradiction there is.

The EU said it wanted a directive that could patent a new computer-controlled steel mill (if it makes better steel), or a technically superior computerised device like a mobile phone, but not 'pure' software doing routine data processing.

It seems to me that MEPs have been very careful picking and choosing amendments (or astonishingly lucky), and that is exactly what they have come up with.

What happens next:

Posted Sep 25, 2003 0:00 UTC (Thu) by wweber (guest, #11678) [Link]

Interesting: "Software for Hardware" is what will be patentable. I left that field in the right nick of time!

What happens next:

Posted Sep 25, 2003 0:45 UTC (Thu) by coriordan (guest, #7544) [Link]

> "Software for Hardware" is what will be patentable

Software *with* [innovative] hardware will be patentable. A hardware invention will not be excluded from patentability just because it uses software.

Software on it's own, whethere it's "for Hardware" or not, will not be patentable. (What type of software isn't for hardware?)

What happens next:

Posted Sep 25, 2003 0:55 UTC (Thu) by bojan (subscriber, #14302) [Link]

Good point. Now you'll see hardware manufacturers like IBM and Motorola submitting pure software patents wrapped into "this is a piece of hardware" crap. I've seen such patents in Australian patent application database. For instance, Motorola applied for a patent on a device+software that checks its own ID and then downloads the software for itself (application date in 2001).

If that kind of thing flies, one might expect that things like up2date would be infringing on that patent. The intentions of the legislator sometimes don't matter when the case is heard in court...

What happens next:

Posted Sep 25, 2003 8:21 UTC (Thu) by hingo (subscriber, #14792) [Link]

"Now you'll see hardware manufacturers like IBM and Motorola submitting pure software patents wrapped into "this is a piece of hardware" crap."

Yes, but as I see it, the directive also ensures that red hat can distribute up2date (in europe, of course) as long as it has nothing to do with the hardware that is patented.

Put another way: If you distribute software on a CD, you cannot be infringing on a hardware patent.

henrik

What happens next:

Posted Sep 25, 2003 8:47 UTC (Thu) by RobDavies (guest, #9930) [Link]

That's the reason why the amended directive is a good thing. Nation
Patent Offices have been lax in awarding patents for obvious ideas, ones
with prior art, and finally in many cases simply because software or a
network and computing is used.

It looks like the text makes it clear that should not happen.

What happens next:

Posted Sep 26, 2003 0:55 UTC (Fri) by wweber (guest, #11678) [Link]

(What type of software isn't for hardware?)

The phrase "software for hardware" is how a EE explains "firmware" to desktop computer literates.