NatParlGreen0510En

link to the motion



Motion 2005/06:L283

Patents on programs for computers

by Gustav Fridolin and Ulf Holm (mp)

PRELIMINARY VERSION

Motion for a parliamentary resolution


  1. Riksdagen tillkännager för regeringen som sin mening vad i motionen anförs om att patentkrav på ett datorprogram, antingen som sådant eller på en bärare, inte skall vara tillåtet.


1. Riksdagen makes the government aware of its opinion, as is declared in the bill, that patent claims on a computer program, on its own or on a carrier, shall not be allowed.


  1. Riksdagen tillkännager för regeringen som sin mening vad i motionen anförs om att publicering eller distribuering av information aldrig kan utgöra patentintrång.


2. Riksdagen makes the government aware of its opinion, as is declared in the bill, that publication or distribution of information can never constitute a patent infringement.


  1. Riksdagen tillkännager för regeringen som sin mening vad i motionen anförs om en definition av begreppen ”bidrag” och ”uppfinning”.


3. Riksdagen makes the government aware of its opinion, as is declared in the bill, on the definitions of the terms "contribution" and "invention".


  1. Riksdagen tillkännager för regeringen som sin mening vad i motionen anförs om definition av teknikområde.


4. Riksdagen makes the government aware of its opinion, as is declared in the bill, on the definition of "field of technology".


  1. Riksdagen tillkännager för regeringen som sin mening vad i motionen anförs om att en förbättring av databehandlingseffektivitet, som t.ex. ökad operations­hastighet eller minskad felbenägenhet hos ett databehandlingssystem, inte är ett tekniskt bidrag.


5. Riksdagen makes the government aware of its opinion, as is declared in the bill, that an improvement of data processing efficiency, such as improved speed of operation or decreased propensity of failure in a data processing system, is not a technical contribution.



Preamble

Sweden has signed the European Patent Convention. This means that patents announced by the European Patent Office in Munich are just as valid as those announced by our own patent office, provided they have been translated to Swedish.

The European Patent Convention is an intergovernmental convention. It is not binding, but as the patents issued by the European Patent Office are just as valid as those issued in Sweden, it would be unreasonable if we in Sweden denied a patent that can be obtained in Munich. Therefore it is desirable that the legal framework of both patent offices are adapted to each other.



The Supreme Court of Sweden has on several occasions, among others in the verdict T4707-98, conveyed this opinion:

"It may be desirable that a national court as far as possible adapts to the practice enforced within European Patent Office EPO."

"The Supreme Administrative Court has also in the pleni verdict RÅ 1990 ref 84 settled that, Sweden's ratification of the European Patent Convention has made it necessary that we in our internal law enforcement within the limits of what is consistent with Swedish law take into consideration the practice which has been developed within the European Patent Office."



Swedish patent law is therefore closely bound to the European Patent Office and our law enforcement is developed in alignement with the practice of the practice of the European Patent Office. The question is if we as legislators can do something when we see a developement of practice that we consider is wrong.



The practice of the EPO

The Swedish courts have been influenced by the EPO praxis, as evidenced by e.g. a press release from Statskontoret on Septemer 1st 2003. In that press release, Statskontoret objects against a patent regarding "transmission and handling of electronic forms", which has been granted by the EPO as well as in Sweden. Statskontoret claims that the patent in question only regards an administrative method for form delivery, and hence is not a patentable invention according to Swedish law.



A quick search in the database of the European Patent Office, in the category that the form patent belongs to, renders almost 7000 hits. How many of them actually representing patents on methods, that ought to be relevant for the 24-hour authority of Statskontoret, is impossible to decide, but the mere amount indicates that the European Patent Office means such methods belong to the patentable field.



That the European Patent Office has enlargened the patentable field, is particularly clear if one compares how the supervision of the Office has changed from the creation of the convention, till today. Today, so called program claims are common, in 1978 they were explicitly forbidden. It has been a "gliding" development. As an example it can be mentioned the patent application, on a method for deciding in which order customers should be served, was rejected in Sweden in 1983. The European Patent Office granted the same patent in 1987.



Several members of Riksdagen, e.g. Lennart Daléus (Centerpartiet) and Kenneth Johansson (Centerpartiet), have in several bills pointed out that the development concerning patents on computer programs goes in the wrong direction. Requirements have been presented that Sweden in international negotiations should point out that patents on computer programs should not be allowed to occur.



Each bill has so far been rejected with the argument that "the opinions that have been brought forward in the bill are being taken into consideration in relation to the continuing negotiations in EU", which referred to the directive on patents on computer programs, that came from the commission in February 2002.



Unlike what one can assume was stated as reason for rejection, the directive did not aim at stopping patents on computer programs. The proposal was instead aiming at codifying the practice that is applied by the European Patent Office. Now that the handling in EU is finished it is of current interest to arouse a bill on this again.



The amendments to the proposal of the European Commission, which were approved by the European Parliament in September 2003, drew a clear border for the patentable field. The border was derived from the principles behind the European Patent Convention, instead of the interpretation of the Convention by the European Patent Office.



Right before the final vote a compromise proposal was made. It had support in all political groups and was a summary and adjustment of all the work that the European Parliament had done during almost four years of handling of the directive. The compromise proposal had a decisive significance for the development till the final vote, and virtually contained a number of clarifications with an aim of reconnecting to the principles behind the European Patent Convention.



On 6th July 2005, the European Parliament finally rejected the whole directive. All Swedish Members of the European Parliament, from all Swedish parties of the Riksdag unanimously voted down the proposal. This means that the assertion of Minister of Justice Thomas Bodström, that "Sweden is still supporting this text" from the 20th January this year is not correct today. The proposal to change the law according to the practice of the European Patent Office, did not pass. The whole idea lacks parliamentary support. A clear indication that one does not want patents on computer programs in Europe.



Riksdagen, as the legislative assembly of Sweden, must now get an impression of the decision of the European Parliament and take note of the work that the European Parliament has done. Further, Sweden must also influence the European Patent Office to stop the wider and wider interpretation of the Convention.



The law has to be made clear. During the EU-parliament work with the directive, it was declared many times that computer programs should not be able to be patented, at the same time it must be ensured that computer assisted inventions should be able to be patented. To make this clear, a set of definitions and clarifications are required.



A computer aided invention is a invention that is supported by computers and software, for instance to create a chemical minxture or to control a physical process. Its of course clear that its not the computer as such that creates the chemical mixture or the physical process



A computer is a certain kind of machine. It processes data, nothing else. Actual computers implement the realization of an abstract mathematical machine that in practise is constructed by processors, memmory and storage space, and has interfaces to exchange information with humans and external systems. A data processing system is a computer or a network of computers. A computer program is a solution of a problem by using calculations with the aid of a data processing system. Such solutions should not be patented. This understanding is in agreement with the Swedish patent court in its resoning in the case 01-157 2002. The ruling is a rejection on a patent on a electionic stock exchange:



"The fact that computing leads to a faster and more reliable transactions is in the nature of computing and is a general purpose of computerization. The benefits that the applied patent process in this sense does, does not contributes in giving the process a technical character".



Solutions that give faster and reliable data processing shall thus not be patentable, or more general, solutions to data processing problems are not patentable.



With the above definitions it becomes possible to understand the term data processing without it becoming too wide streched and without it, as Tomas Boström sugested in january 2005, should undermine international agreements. Real inventions are patentable wether they use data processing or not.



Technical Contribution

In Sweden patents are not granted to computer aided business methods that lack technical character (see case 01-157 above), but there are also rules that a invention must include a so called "technical contribution". The compromize amendments in the EU-parlament sought to clarify the central concept because it has been used in different ways in Europe. The following clarification is therefore especially important:



"A "technical contribution" means a contribution to the state of the art in a field of technology. The contribution is the set of features by which the scope of the patent claim as a whole is considered to differ from the state of the art. The contribution must be technical, that is, comprise technical features and belong to a field of technology. Without a technical contribution, there is no patentable subject-matter and no invention. The technical contribution must fulfil the conditions for patentability. In particular, it must be novel and not obvious to a person skilled in the art."



The term "technical field" is also important. A technical field is a field of applied natural science within which knowledge is attained through experiments with controllable forces of nature. This definition matches the concept of technique that Swedish patent law relies on (NU 1963:6):



"The definition of the concept of invention, which is constitutionalized in the Nordic countries, contains the requirement that the invention must have a technical character. An exact definition of what this means can hardly be given, but within the concept lies definitely a requirement, that an invention must be a solution of a problem by means of natural forces, i.e. by means of a causally determined use of natural matter and energy."



Computer programs are protected by copyright and can, like books and music, be published and distributed on e.g. CD:s or via the Internet. Publication and spread of information is in fact the life nerve in the modern information society, and should therefore be protected as effectively as possible. A patent protection would be too slow, fargoing and expensive in comparison to the protection that copyright creates.



The institutions leading the development of the application of justice concerning patents on computer programs, must listen to the lawmaker and read the law while observing the lawmaker's intentions. This bill is intented to clarify the meaning of a number of basic terms, to prevent computer programs from being patented in Sweden and Europe.


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