Computer-assisted inventions shall be patentable

[ News | EPO CII | CII Unwort (german) ]

Erik Josefsson, Brüssels representative of FFII, proposes the term computer-assisted inventions as a pragmatic approach to get rid of terminological confusion created by the EPO term computer-implemented inventions in the EU directive process.

"Yes, there are flaws with the directive. For example, its very name, 'Patentability of Computer-implemented Inventions,' is a disaster", said EICTA-Director MacGann

Background

Terminology in the software patents debate is very confusing. For most people the EPO term "computer-implemented invention" suggests it was not about patenting of software but about technical inventions that also make use of software components. The debate has seen different legal codifications of CII-Terminology in the EU directive process. In its first reeading the European Parliament decided in favour of the second interpretation. The European Patent Office (EPO), which invented the term to circumvent the EPC, writes in its 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. Such claims may e.g. take the form of a method of operating said conventional apparatus, the apparatus set up to execute the method, or, following T 1173/97 (OJ 10/1999, 609), the program itself. Insofar as the scheme for examination is concerned, no distinctions are made on the basis of the overall purpose of the invention, i.e. whether it is intended to fill a business niche, to provide some new entertainment, etc.

Further some patent proponents intentionally misinterpret the term "software patent" as a fictitious additional patent protection of code. The Council prohibited such a patenting of code using the term "software as such", thus removing the fact of exclusion from EPC 52 by redefinition. Translation of CII even adds more to confusion. Many JURI members including the rapporteur recently recommended to use alternative, less misleading terms to describe what shall be patentable. Erik Josefsson, who represents the economic majority in Brussels and Strassbourg, backs the CAI-terminology proposal.

Erik Josefsson: My argument for "-aided".

The aim of renaiming CII to CAI is to be able to talk about swpats and patents on inventions as distinct.

• "CII" is a defacto synonym for software patents and must be replaced.
• The core educational problem is to replace "-implemented" in "CII" with a name for the inventions that remains patentable ("CAI", as proposed).
• When choosing from alternatives we can look at what is available in many different languages (here translated to english): "-related", "-aided", "-assisted", "-steered" "-controlled" etc all existing as possible candidates, all with different flavors that translates more or less elagantly to other laguages. (I am sure Anthony has more greek variants, and maybe czech, polish and portugese suggestions can be put here too)
• Looking at the most known internationally used concepts that could replace "-implemented", we believe the one that should be choosen is the CAD/CAM concept ("computer-aided drafting and computer-aided manufacturing")
• Google returns 12,200 French pages, 11,500 Swedish pages, 121,000 Polish pages, 27,500 Czech pages, 1,030 Greek pages (etc) for "CAD CAM"
• This means that there exists a well accepted and used concept, already translated into all member state languages (in sweden it is "datorstödd konstruktion och tillverkning (CAD/CAM)")
• Rather than getting lost in "linguistics and esotheric philosophy" - [C"?"I] - let's be practical and find a compromise we know is workable in ALL member state languages and fulfils the main problem to replace CII.