Acknowledgements that "computer-implemented inventions" are the same as software
[ Patent News ] [ Denials of CII = software | Harmonisation | Status Quo | Technical]
2005-09-02 Jonathan Zuck (ACT): Protecting software patents essential to innovation
- The CII attempt tried to provide Europe with an appropriate legal framework on software patents.
Source: http://euobserver.com/?sid=7&aid=19782
2005-08-31 Bruce Lehmann: don't fear the software patent in WSJ
- the European Parliament last month failed to agree on a Europe-wide standard for patenting computer related inventions. Opponents of patent protection argued that Europe's software industry would be destroyed by patents. That debate has rekindled the long-running controversy over patent protection for computer software in this country.
2005-06-09 Study ordered by the BSA
- "We wished to define computer-implemented inventions (usually
- referred to as 'software patents' in United States)"
BSA-ordered study on determining the number of patents obtained by SMEs
2005-05-28 Dutch Advisory Committee Software Patents
- In the Advisory Committees opinion, the Directive wrongly persists in the view that the Directive concerns solely the patenting of computer implemented inventions. This gives rise to the suggestion that there is a distinction between such inventions and patents on software inventions or computer programmes. However, in practice this distinction cannot be (properly) made and will become more and more blurred in the future as well. It is important to acknowledge in the discussion that patents on computer programmes do indeed exist.
http://wiki.ffii.org/NlAdvice050604En
2005-05-26 EICTA Legal Affairs Committee Amendment Analysis
- This directive may affect computer programmers if they implement a new and non-obvious technical solution to a technical problem, and thereby infringe a patent. or "Cette directive pourrait affecter les programmeurs sils mettent en oeuvre une solution technique, nouvelle et non évidente, à un problème technique, et enfreignent en conséquence un brevet."
In the German version more explicit:
- Diese Richtlinie kann die Tätigkeit von Programmierern berühren, wenn diese ein Patent verletzten.
http://w3.cantos.com/05/eicta-504-0arfg/documents/0000197250.PDF
http://w3.cantos.com/05/eicta-504-0arfg/documents/EICTA_Assessment_of_Draft_JURI_Amendments_FR.pdf
2005-05 European Patent Office DG1
12th Seminar on Search and Documentation Working Methods
- "Yannis Skulikaris (Examiner) Software-related claims Software as an expression of functionality in a computer can be more efficiently protected by patents than by copyright. Additionally, software can be used in almost any technical field. This is why industry has been recently pushing for software patents. The European Patent Convention (EPC) does not allow patenting of computer programs "as such". Recent case law from the EPO Boards of Appeal has clarified what is a "computer program as such" and has established a new practice. Moreover, in the ongoing process of EPC revision it is envisaged to delete the exclusion of computer programs from non-patentable subject-matter. This development will be in line with the findings of the recent Green Paper of the EU Commission on the patenting system in the EU, as well as with the TRIPS agreement."
http://www.european-patent-office.org/dg1/training/sfa/abstract.htm#1
EPO examination guidelines
- Programs for computers are a form of "computer-implemented invention", an expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie the novel features of the claimed invention are realised by means of a program or programs.
- .. The basic patentability considerations here are in principle the same as for other subject-matter. While "programs for computers" are included among the items listed in Art. 52(2), if the claimed subject-matter has a technical character it is not excluded from patentability by the provisions of Art. 52(2) and (3).
http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm
Remark: EPC 52(2) says "The following in particular shall not be regarded as inventions ... (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;", and you will not find the requirement of a "technical character" in EPC 52 which transforms software into an invention, see analysis and EPO criticism of Lenz.
2005-04-27 Texas Lawyer (about the European software patent directive)
- "Very often whether you get a patent or not is a question of form," says Barron. "It's all
- in the drafting. People can disguise pure software patents."
David Barron, a partner in the IP group at London's Wragge & Co in European Commission Sparks Software Patent Debate
2005-04-21 Businessworld.ie
- The Irish Software Association (ISA) said it would back the introduction of a proposed European Union directive on software patents.
- .. The European Commission proposed introducing patents to protect software in 2002 following similar moves by the US a few years earlier.
2005-03-18 Wired Magazine
- Jeremy Philpott, a marketing executive and former senior examiner for the U.K. Patent Office, noted that although the EU Patent Convention of 1973 specifically prohibits patenting software, in practice many such patents are granted. "The intended purpose of the directive is to clarify the law while maintaining the status quo," Philpott said. "Anything unpatentable now, such as business methods, should remain so when the directive comes in, whereas software which has a technical contribution and is patentable now would still be patentable."
http://www.wired.com/news/politics/0,1283,66938,00.html?tw=wn_tophead_1
2005-03-08 European Parliament plenary (related to Council adoption on 7 March 2005)
- Commission communication - Services in the internal market/Patentability of computer software
Commissioner: Charlie McCreevy
- "Well, ehh, to the wide ranging ehh a issues raised I could possibly
- not contribute to all the point. But on the software patents - and I clearly indicate software patent - the ball is in the court of the European Parliament."
Commissioner McCreevy: address to the European Parliament
2005-03-07 Article on Council adoption on 7 March 2005
- some IT vendors, including Sun Microsystems Inc., say the proposal would open the door to a U.S.-style patent regime
EBCVG: EU software patent directive approved
2005-02-24 European Parliament
- It invites the Commission to review its proposal for a software patents directive (in line with the decisions already taken by the Legal Affairs Committee and the Conference of Presidents)
European Parliament: Plenary motion adopted on 24 February 2005
2005-02-20 Heather J. Meeker, US patent attorney
- You might not guess it from the rhetoric, but the EU already allows software patents. The directive was intended to harmonize EU software patents, not create them of whole cloth, and to clarify the scope of software patents that may issue.
LinuxInsider: The Fuzzy Software Patent Debate Rages On
2005-02-18 Microsoft Lobbying: Software patents
Craig Winnemaker (TechCentralStation, or TCS) interviews Jonathan Zuck ( ACT) about the EU Microsoft ruling and software patents. Both ACT and TCS are US lobbyist groups which work for Microsoft in Brussels.
- TCS Europe Editor Craig Winneker talks to Jonathan Zuck, President of the Association for Competitive Technology, about the fallout from the EU Court of First Instance's decision to uphold a record fine against Microsoft and also about the European Parliament's recent attack on software patents.
...
CW: And this time visited Brussels, it was kind of figurative
pie in the face Gates because as soon as he left, the European Parliament starts shooting down software patents. I mean, is there any point to this or
- got on the horizon. And I think that Microsoft is right to continue to use all means of negotiation and just presence in these debates. You know, I don't think any one of them is going to be the magic bullet or the ultimate blunder. I think that it's an ongoing and continuous discussion that needs to happen with European governments and I think they're looking to starting to do. So I think that's the right strategy. I just don't think anything is going to happen over night.
http://www.techcentralstation.com/021805A.html
2005-02-17 ACT Press Release
"ACT calls on the European Leaders to Promote Growth and Innovation by Supporting the Patentability of Software"
http://www.actonline.org/prdetail.aspx?PRID=49
2005-02-08 Unilateral statement Poland
- The draft directive defines a computer-implemented invention in such a way that every program installed in a computer and executed in it becomes an invention.
Statement for entry in the Council Minutes - 5. Statement by Poland
2005-01-23 Jacob Buksti, MP, Spokeman on European Affairs, The Danish Social Democracy Party
In a letter to Foreign Minister Per Stig Møller
- In June, during the Irish presidency, a compromise concerning the so-called software patent directive was passed with the narrowest possible majority, which means that standards and interoperability (communication between systems/user) is not protected against patenting. Specifically, this means that the compromise makes it legal to patent standards and software, which are necessary for ensuring interoperability without having to run a hurdle race over various patents, which is very destructive for open standards, unhindered communication between public systems and private, and the development of software.
2005-01-03: Intellectual Asset Management Magazine
- "Under the compromise text, therefore, computer-implemented algorithms and
- business methods, in addition to protocols and data formats, are regarded as inventions."
Joff Wild, editor, IAM (about the 18 May 2004 Council text, page 3 at the bottom of the sidebar)
- "Having lost in the US, the anti-software and business-method patent block
- has focused its attention on the Commissions renewed attempt to define rules for patenting software."
Craig Opperman, US patent lawyer (page 2 bottom right)
2004-10-00 Microsoft EU Policy Handbook
The EU has also been working on a Directive on the Patentability of Computer Implemented Inventions ("Software Patents directive"). The Directive would harmonise and clarify the legal framework concerning patent protection for computer-implemented inventions by codifying the European Patent Office's existing case law and practice.
http://www.ffii.org/~zoobab/bh.udev.org/filez/swpat/MicrosoftEUPolicy/
Joachim Würmeling MEP (EPP, pro-swpat). Activity report 1999-2004
- Activity report of Dr. Joachim Wuermeling - Balance of legislative period 1999 till 2004 of the European Parliament
- ..
- Legislation
- .. Product piracy Airplane insurance Software patents
- ..
http://www.wuermeling.net/iframe_taetigkeit_bilanz.htm
2004-11-05 PL Government and Industry United against Council Software Patent Agreement
On Friday, 2004-11-05 at 13:00, invited by state secretary Wlodzimierz Marcinski, representatives of many Polish organizations, companies and institutions, met in the polish Ministry of Science and Informatization to analyze to directive on software patents accepted as a political agreement by the Council of EU on 18 may 2004.
Among the participants where:
- the Minister, State Secretarty and a few other staff from the Ministry of Science and Informatization
- Undersecretary of State from the Ministry of Economy
- president and a few experts from the polish Patent Office
representatives of FFII Poland, ISOC-PL, PTI
- PRO - largest polish proprietary software producers association
- PIIT - Polish Chamber of Informatics and Telecommunications
- several patent lawyers and CEO's of patent attonery companies
- representatives of Sun, Novell, HP and Microsoft
During the conference the Ministry asked all participants three questions: 1) do you think that the directive as accepted on 18 may 2004 by the Council allows software patents? - Everyone agreed that it fully does. Not a single patent lawyer or big business lobbyist objected.
PL Government and Industry meeting
2004-08-17: PricewaterhouseCoopers
- "Only very few European companies have prepared themselves for the
- consequences of a software patent regime. It raises the question how the introduction of the European software patent interacts with a European strategy based on widespread use of ICT's."
PricewaterhouseCoopers: Rethinking the European ICT agenda (item 342 p. 50)
2004-06-22: Deutsche Bank Research
- "Chances are that patents on software, common practice in the US and on the
- brink of being legalised in Europe, in fact stifle innovation. Europe could still alter course."
Jan Hofmann, Deutsche Bank Research (on page 1 of a brochure titled "Innovation in Germany: Windows of opportunity")
2004-06-01: Dutch Parliament
- "EXPRESSES its opinion that the political agreement reached at the Competitiveness Council of May 17th and 18th 2004 offers insufficient guarantees to prevent excesses with regard to software patentability;"
The motion was supported by all political groups, except for the VVD.
2004-05-18: Council Press release
- "Software patentability"
Council press release regarding the 18 May political agreement (title in the table of contents on page 2)
2004-05-17: Italian Deputy Minister of Economic Affairs and Finance
- "The American Federal Trade Commission (FTC) has expressed worry about the
- implications of the effect their model of patentability of software has in the United States, and what the Irish Presidency proposed is extremely similar."
Mario Baldassari, Deputy Minister of Economic Affairs and Finance, Italy.
2004-05-13 Italian Minister of Innovation and Technology
- "# The generic principle of non-patentability of software translates in this Directive proposal into a common and declared acceptance of the principle of patentability of software, but under the three generic conditions for the patentability, which, for the software field, are specified in an inadequate way. That leaves much space to interpretation, with the risk of extending the cases of applications of software patents, yet possible in the actual situation (30.000 software and similar patents yet released by the European Patent Office). Therefore it would be advisable to pursue a more detailed and limiting definition of the conditions of patentability."
Lucio Stanca, Italian Minister of Innovation and Technology
2003-05: Dieter H. Paemen, Morrison & Foerster
- "The EU has not harmonized Member States' national patent laws, although it is taking its first careful steps to do so, notably in the area of software patents with the proposal for a Directive on the patentability of computer-implemented inventions." "More recently, the European Commission has put forward a proposal for a directive to harmonize Member States patent protection for software."
Dieter H. Paemen, Morrison & Foerster, European Law Bulletin
2002-11: Advokat LL.M., ph.d., Kim G. Hansen
- "The introduction [...] of the new concept "computer-implemented inventions" cannot seemingly change the fact that the directive is all about what has previously been called software patenting. The introduction of the concept will possibly be seen as a political attempt to distance oneself from politically "dangerous" terminologi mentioned earlier. "Computer-implemented inventions" can in all practical aspects be replaced with "software related inventions", which, due to the broad definition, does not change the fact that we are talking about patenting of software"
2002-09-19: European Economic and Social Committee
- "One may well wonder what the real objective of the Directive is, in particular
- given the explanatory memorandum, which begins with considerations about the need to protect the software industry against piracy, and in the documents appended to the Directive discusses almost exclusively software and the software industry, whose influence on the proposal seems excessive yet entirely irrelevant, if the scope of application was really as limited as the Commission maintains."
- than the pure and simple abolition of Article 52(2) of the EPC, which is what the EPO executive and some Council members want, it does nonetheless open the way to the future patentability of the entire software field"
Report of the European Economic and Social Committee on the original Commission proposal (only a few of the many devastating paragraphs)
2002-06: European Commission
- "Clear rules on software patents
- Commission proposes harmonising national rules"
European Commission: Single Market News
2002-04-15: Reinier Bakels and Brent P. Hugenholtz
- "experience has indeed demonstrated that technical patents may include
- (potentially undesirable) software and business method claims."
- security. It may not prevent undesirable software or business method patents."
Reinier Bakels, Brent P. Hugenholtz: Discussion of European-level legislation in the field of patents for software (point 5, page 33, discussion of the original Commission proposal)
2002-01-xx Cordis.lu: Soft competition: Software patenting and the proposed Community Patent are high on the agenda for Europe's high-tech multinationals
Interview and quotes of Mr C. Nguyen van Yen (Thales Intellectual Property)
- The uncertainty over software patentability in Europe is an obstacle that he would dearly like to see removed. "Our algorithm patents cover functions which are protected per se, however they are implemented. But we have not patented software as such, despite the potential for a wide variety of inventions in this field." [...] "This is why we stress the need for Europe to move forward in software patenting," he says. The situation also has some very practical implications for IP practice within Thales, and not just for their IP experts. "Our engineers have been taught that software is not patentable," he says. "So they have been unaware of the growing opportunities for software-related patents. We need to develop awareness in our inventors so that they know not only that software is patentable but also how to patent it." In particular, he encourages Thales' software engineers to monitor the patent literature as a source of ideas for new inventions, as hardware engineers have for many years.
Source: http://www.cordis.lu/itt/itt-en/02-1/case-study02.htm
2002-02-20 Commission Proposal
- "EXPLANATORY MEMORANDUM Objective of the Community initiative Software development has shown steady growth in recent years. It has had a major impact on the whole of European industry and provides a substantial contribution to the GDP and to employment. In 1998, the value of the packaged software market in Europe was 39 B Euros [1]. A recent study by Datamonitor [2] concluded that the number of packaged software workers in Western European countries will grow by between 24% and 71% from 1999 to 2003, with an average of 47%. A further conclusion is that each packaged software job creates 2-4 jobs in the downstream economy and 1 job in the upstream economy.(...) Given the maturity that today's software industry has achieved, many improvements of software (...)"
2001-04-27 intellectual-property.gov.uk: Can I patent computer software?
- It is possible to patent programs for computers which, when run on a computer produce a "technical effect". However, if a program does not produce a technical effect when run on a computer it is unlikely to be patentable. A technical effect is generally an improvement in technology, and needs to be in an area of technology which is patentable. For instance, an improved program for translating between Japanese and English is not patentable because linguistics is a mental process, not a technical field. On the other hand a program which speeds up image enhancement may be patentable because it produces a technical improvement in a technical area. Other restrictions also apply - the UK Patent Office web site has a practice notice on patenting computer software. The European Patent Office (EPO) takes a similar approach to the UK Patent Office on patenting software.
http://www.intellectual-property.gov.uk/std/faq/computers/index.htm
2001-01-10: Steve Probert, Patent Examiner, UKPO
- What happens next? "It's anybody's guess", says Steve Probert, patent expert at the British Patent Office. Ahead of the November EPC, Probert had suggested that "the quiet assumption is that, sooner or later, we will be following the
2000-04-10: Commission Review on Copyright Protection for Computer Programs
- "The Commission has noted that there is a misconception among certain
- circles that copyright is the only available regime for protecting computer programs."
- programs, on condition that the product in question meets the conditions of novelty and industrial application of a technical invention, as is the case with our economic partners at international level, in particular the United States and Japan."
- the new rules on the patentability of computer programs throughout the whole Community."
- principles of a computer program, which according to recital 14 of Directive 91/250/EEC can never be covered by copyright. "
1999-02-05: Promoting innovation through patents - the follow-up to the Green Paper on the Community patent and the patent system in Europe
- "Community activity should therefore concentrate on creating a unitary patent to apply to the whole of the Community. The Communication also announces new legislative initiatives covering:
- the patentability of computer programs;
- the role of patent agents and the recognition of their professional qualifications.
Community patent and the patent system in Europe: Green Paper (1997)
1998-03-23: Ingo Kober, President of the European Patent Office
- "At first glance the casual observer might perceive something of a paradox
- in the title of my talk - "Software patents - an essential element of the European patent system". After all, are not programs for computers one of those items singled out in Article 52(2) EPC as not to be regarded as patentable inventions? Of course we all know that patents are granted for software-related inventions (SRIs) in Europe, ..."
- hostile towards the very notion of patenting software. But I hope to be able to demonstrate to you that in fact, those of us who are charged with administering the patent system in Europe - both at the EPO and in the national patent offices of its contracting states - are only too well aware of the significance of software-related inventions as a cutting edge technology, the protection and development of which is essential to Europe's competitive position in the world.
Ingo Kober, President of the European Patent Office in his talk titled "Software patents - an essential element of the European patent system"
1998-03-23: John Mogg, Director General (DG XV), European Commission
- "Changing the law would be a signal to the public that patent protection for
- computer programs is available. Would bring clarity."
- [snip] propose a directive to harmonise national patent laws in the area of
- computer software.
- The Commission might be prepared to support a revision of the Munich
- Convention to improve it and to make it clear that computer programmes are no longer excluded from patent protection."
John Mogg, Director General (DG XV), European Commission at the conference "Software Patents in Europe", in his talk titled The Importance of Software Patents to the European Community
1999-02-05: Promoting innovation through patents - the follow-up to the Green Paper on the Community patent and the patent system in Europe
"Community activity should therefore concentrate on creating a unitary patent to apply to the whole of the Community. The Communication also announces new legislative initiatives covering:
- the patentability of computer programs;
- the role of patent agents and the recognition of their professional qualifications."
Community patent and the patent system in Europe: Green Paper (1997)
The following statements lack date, link and/or translation:
Erika Mann, MEP
Software-Patente
- Über die Patentierbarkeit von Computersoftware ist in Europa in den letzten Jahren intensiv diskutiert worden. Teile der europäischen Wirtschaft sind der Auffassung, dass Patente auf diesem Gebiet die Innovation fördern könnten, da sie einen angemessenen Schutz bieten angesichts der beträchtlichen Summen und Ressourcen, die die Entwicklung leistungsfähiger Spezialsoftware erfordern kann.
- Zahlreiche mittelständische Unternehmen wiederum sind der Meinung, dass Patente den fairen Wettbewerb untergraben und Innovationen verhindern.
(date?) Süssenberger, Technology Transfer, Uni Göttingen
Die Prüfungspraxis des Europäischen Patentamtes unterscheidet zwischen Software "als solcher", für die kein Patentschutz erlangt werden kann, und Software mit "technischem Charakter". Eine Software weist dann einen technischen Charakter auf, wenn 1) die Software selbst ein technisches Problem löst (etwa Steuerungs- und Regelungssysteme) oder 2) bei der Ausführung der Software ein zusätzlicher technischer Effekt auftritt, wobei physikalische Veränderungen in der Hardware, wie sie bei jeder Ausführung von Software auftreten, nicht ausreichen. Neuheit und Erfindungshöhe vorausgesetzt, erkennen die meisten Patentämter solche Software als patentfähig an, die z. B. einen der folgenden zusätzlichen technischen Effekte aufweist:
- schnellere Ausführungszeiten,
- höhere Datentransferraten,
- effektivere Datenspeicherung,
- höhere Auflösung etwa in der Bildverarbeitung,
- einfachere Manipulation bei Computergraphiken
- effektivere Datenkompression,
- höhere Effektivität eines Datenfilters.
link?
(date?) Wolfgang Tauchert, JurPC
- Bei den von der Richtlinie angesprochenen "computerimplementierten Erfindungen" handelt es sich um solche Erfindungen, deren Ausführung ein Computerprogramm und damit den Einsatz eines Computers erfordern. [..]
+ invention which are executed with a computer program and thus require the use of a computer
Link?
see SwpatcninoDe, dec 04 ??