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European Commission Reverses its Views on Patents

Posted by ryuzaki0 on from the maybe-not dept.

prostoalex writes "ZDNet UK News reports "The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law". Politician Adam Gierek posted a question to European Commission asking the institution to clarify its standings on software patents."

2 of 181 comments (clear)

  1. Pretty sure the reporter has it wrong... by morganew · · Score: 5, Informative

    Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"

    Article 28.1 of the draft Community Patent Regulation provides that a community patent can be invalidated on the grounds that the subject matter of the patent is not patentable in accordance with Article 52 of the Munich Convention (that is, the European Patent Convention). Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

    If the community patent regulation were actually adopted in its current form, one would be able to get and keep patent protection for computer software-implemented inventions in the same manner that it is currently possible under the European Patent Convention.

    Unless the Commission is putting for a new version of Article 28.1 of the draft Community Patent Regulation that specifically repudiates the "as such" language in Article 52 of the European Patent Convention, the situation is the same as it ever was.

    relevant text of orginal EPO Docs:

    Methods of doing business are, according to Article 52(2) EPC, not to be considered to be inventions. Although not explicitly stated, this exclusion is also considered to apply to a wide range of subject-matters which, while not literally methods of doing business, share the same quality of being concerned more with interpersonal, societal and financial relationships, than with the stuff of engineering - thus for example, valuation of assets, advertising, teaching, choosing among candidates for a job, etc.. The term "business methods" has become a generally used shorthand for all of these areas.
    Claims for business methods can be divided into three groups:

    claims for a method of doing business in abstract, i.e. not specifying any apparatus used in carrying out the method;
    claims which specify computers, computer networks or other conventional programmable digital apparatus for carrying out at least some of the steps of the business method ("computer-implemented business methods");
    claims which specify other apparatus (perhaps in addition to computers) e.g. mobile telephones. ,/i>

    --
    A sig?!? I don't think so.....
    1. Re:Pretty sure the reporter has it wrong... by Anonymous Coward · · Score: 5, Informative
      Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

      Although not completely inaccurate, that's pretty misleading as the way you've arranged the words gives the impression that there's no clear exclusion of software patents. What Article 52 actually says is:

      (1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

      (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

      (a) discoveries, scientific theories and mathematical methods;

      (b) aesthetic creations;

      (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

      (d) presentations of information.

      (3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.


      That final "as such" has indeed been used by the EPO as a loophole to allow software patents but in the actual Convention it applies as much to e.g. presentations of information or to aesthetic creations as it does to software.

      In practice the EPO has applied it in relation to software in a manner that permits software patents in general.

      The wording probably could be used to justify certain exceptions to the general prohibition on software patents (or patents on presentation of information etc.) but I don't believe that it can in good faith be used to render the explicit prohibition on software patents irrelevant.

      Can any supporters of the EPO's stance give examples of things which would have been patentable had the EPC not explicitly excluded computer programs from being regarded as inventions, but which the EPO treat as non-patentable as a result of that exclusion?