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- Statement of Mr. Wodzimierz Marciski,
- Deputy Minister for Scientific Research and Information Society
- Technologies
- of the Republic of Poland
- concerning the draft directive of the European Parliament and the Council
- on the patentability of computer-implemented inventions
- at the Conference Amsterdam, 30-31 May 2005
- on the patentability of computer-implemented inventions
Mr. Chairman, Ladies and Gentlemen,
- Enhancing the competitiveness of the European economy and strengthening the European Research Area requires a proper settlement of the issues related to patenting computer-implemented inventions. The need for improving legal certainty of the protection of such inventions, which is particularly important for economic decisions of businesspeople active in the area of information technology, has led to the ongoing work on the directive on the patentability of computer-implemented inventions. The goal of the directive is to preclude the possibility of patenting non-technical inventions (ones not pertaining to the domain of technology), inventions lacking the characteristics of innovativeness, business methods and computer programs as such. The adoption of the directive in the right shape will undoubtedly contribute to the development of an environment conducive to innovations in industry and computer science. However, let me note here, that several key provisions included in the draft resulting from the Council meeting on 18 May 2004 do not serve the purposes mentioned above. First of all, although the directive appears (in Art. 4) to disallow considering a computer program to be a patentable invention, in fact (by virtue of Art. 5.2) it provides for the possibility of introducing patent protections relating to computer programs as such whenever there are more protections concerning the object of the patent submission. Secondly, it states that also computer programs may be treated as computer-implemented inventions for they belong in the area of technology, and are thus bound by the provision of Art. 27 of the TRIPS Agreement. Because of this inadmissibly broad interpretation of the TRIPS Agreement, the draft directive contradicts Art. 52 (2) and (3) of the Convention on the Grant of European Patents, according to which computer programs as such are not considered as inventions. Moreover, it does not ensure the protection of interoperability, admissible on the basis of Art. 30 of the TRIPS Agreement. The draft directive allows for reverse engineering and decompilations analogically to the provisions of the directive on the protection of computer programs by means of copyright. While the exceptions provided for in that directive are sufficient in the context of copyright, Art. 6 of the draft directive does not actually enforce interoperability on a patent holder. A detailed analysis of the directive¡Çs provisions leads to the conclusion that there is a need for the introduction into national law of a new definition of a patentable computer-implemented invention. 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. On the other hand, when defining technical input, the draft directive does not sufficiently distinguish between technical and non-technical features of an invention. Art. 2b and 3 suggest that patentability will be enjoyed by an invention whose contribution to knowledge resides only in the non-technical part.
- I would also like to point out to the fact, that the draft directive contains a number of legal incoherencies and vague terms. The definitions of a ¡Èfield of technology¡É, or of ¡Ètechnical¡É, are a case in point. The proposal lacks a clear statement that the programming of computers, computer networks or other devices, is not a field of technology. It seems, that in view of the highly difficult legal issues involved, further work on the document should be assisted by a document including examples of inventions that will enjoy patentability and ones that will not. Those examples will constitute an interpretation aid for rulings on the patentability of computer-implemented inventions. It also seems necessary to include in such a document a preliminary assessment of possible legal and financial consequences caused by the implementation of the directive. In conclusion, I wish to emphasize that the goals that underlie the work on the directive can only be achieved when it establishes explicit legal instruments making it impossible to patent computer programs or their fragments, while enabling computer-implemented inventions to enjoy patentability. The text must state explicitly that computer-implemented inventions should be protected only when limited to products such as programmed technical equipment or a technical operation executed with this equipment.
Poland will steadfastly strive, at later stages of the legislative work, for these conditions to be met.
