Brian Kahin: TRIPs provision important from a policy development standpoint
[ TRIPS ]
2005 Jun 1st: Asked about advice for Members of Parliament, Prof. Brian Kahin advocates not to limit future options. Therefore he advocates !TRIPs/ clarifications regarding "information processing" for policy development reasons./
Let me just suggest two things. And this is purely from a policy development, a problem of policy development standpoint.
If I were in Parliament I would be very concerned about future options in this area.
So in particular, particularly important for that is making it clear that information processing is not a field of technology for !TRIPs.
Now there are gray areas, in any way you draw the line and we don't know enough at this point to be able to legislate with definitiveness about those gray areas.
But you want to draw a line agains, a clear line against patentability at one end and against !TRIPs on the other. So you've got room to manouvre in the future. Otherwise !TRIPs preempts your ability to respond.
And thats is one of real consistent dangers of international agreements that are negotiated among an elite and are often motivated as in this case, in the Trips case, by the pharmaceuticals interests of wanting drugs to be patented everywhere - and nobody was paying attention to software in that context.
Comment (Rebentisch)
There are two different levels of the proposed directive when it comes to the "field of technology" provisions:
a) Defining relations to !TRIPs (government-treaty)
b) Defining granting conditions (government-applicant)
On a) it is consensus that information processing is no "field of technology" as !TRIPs merely codified the status quo. It is important to clarify this as many lobbyists use the catchy wording of !TRIPs 27 in advocacy. Early proposals of the directive even polemically stated that software was a "field of technology" mixing colloquial language with legalese. In the Council version it was shifted to the recitals. My personal experience is anytime lobbyists promote patenting for certain areas to lawmakers based on "!TRIPs 27 obligations" - Hugo Lueders from !CompTIA builds his advocacy paper on !TRIPs only - it is unfounded or legal fraud. Recently the Indian Parliament rejected US pressure based on the wacky !TRIPs obligation case to change its law. Prof. Lenz recently pointed out in his detailled analysis that !TRIPs is far more difficult than those who shoot the "!TRIPs silver bullet" suggest. His result: "There is no clear and definite basis for the assertion that Article 27.1 TRIPS limits the liberty of national legislation to find the adequate level of protection in relation of software patents. Therefore, this legislation is not bound in any way by TRIPS considerations." Brian Kahin here points out that a !TRIPs provision for information processing in the directive does open future options while a statement of the contrary does not.
b) Is a different policy issue. Stating "information processing is no field of technology" has no direct effects on the granting process. Precisely spoken "information processing is no field of technology" is different from "information processing may not be part or feature of a patentable inventions" or "everything related to information processing such as signal processing is not patentable". There are different opinions how data processing or software shall be part of patentable inventions among the stakeholders of the debate but this is another issue. Simplified laymen interpretations contribute to much confusion among !MEPs. Our conviction is that most model cases put forward such as the ABS brakes and computer tomographs are patentable under the amendments proposed by Michel Rocard et alii.
