FITUG e.V.

Förderverein Informationstechnik und Gesellschaft

Study "The Economic Impact of Patentability of Computer Programs"

http://europa.eu.int/comm/internal_market/en/intprop/indprop/studyintro.htm

Report to the European Commission by Robert Hart (Independent Consultant), Peter Holmes (School of European Studies, University of Sussex) and John Reid (IP Institute) on behalf of Intellectual Property Institute, London

Summary of and conclusions from the Study

[...]

We return to the more general aims of the study.

I To provide information on a number of key elements to enable the Commission to assess whether the envisaged Directive should be confined to harmonising the relevant laws of the Member States on the basis of the status quo as defined by the jurisprudence, or whether it should extend the scope of application of the Directive.

II In respect of the latter option: to provide guidance on the possible consequences of more wide ranging harmonisation.

III To make a first assessment of the main consequences for innovation and competition, in particular for SMEs, of extending patent protection beyond current levels.

IV Finally, to address whether patent protection in Europe should be available for computer programs with applications outside the areas which are currently considered to be "technical" by the jurisprudence of the European Patent Office and Member States' courts and if so, to what extent. A particular issue is how such an approach could be explained as being in line with basic patent law principles.

On I: we consider that this report has, despite the constraints of time and budget, provided a great deal of useful indeed probably sufficient information on the key elements.

On II and III: There may be other ways of formulating the options for possible more wide ranging harmonisation beyond current levels but we suggest the following three:

Option 1: we could stay with the status quo, subject to removal of the exclusion of "computer programs" "as such". This would, we consider, have no consequence except the important one that SMEs and independent software developers will be less likely to consider computer program related inventions unpatentable.

Option 2: European law could ensure that the mere use of a computer program/computer to implement an invention brings an invention within technology, as appears to be the case in the USA. This would be a substantial change from basic principles of Eiropean patent law. It would be highly controversial. But it would bring European law into alignment with U.S. law on patentability of business methods.

Option 3: European law could be altered to have no requirement that patents be limited to technology. If it were accepted that business methods should be patentable simpliciter then this is the logical consequence. But any attempt to make such a change would cause great controversy. This would interfere in achievement of option 1 and in achievement of adequate understanding by SMEs and independent software developers of the opportunities and risks from the patentability of computer program related inventions under option 1 or under the status quo.

Very relevant to options 2 and 3, as to any extension of patents, is the caution amongst economists specialising in IP rights. As shown in our economic study of the literature (Section III of our report), most economists have doubts whether economic efficiency, i.e. increased overall welfare, is achieved by having or making computer program related inventions patentable. This caution is supported by the continuing, indeed growing, concern in the USA on the issues surrounding patents on computer program related inventions. The debate in the States is not finished.

On IV: This is mainly covered by our input on II and III except for the last sentence of IV: A particular issue is how such an approach could be explained as being in line with basic patent law principles.

We consider this in relation to options 2 and 3 above.

Option 2 would allow a patent to be granted on a novel and unobvious invention which had no other connection with technology than that the invention is implemented on a computer. This can be argued to meet e.g. the United Nations definition of technology: "a combination of equipment and knowledge" and so to be in line with basic patent law principles. However it can also be argued that nothing technological is achieved by the combination of the computer (equipment) and the knowledge, which would for the purposes of the argument not be technological. It should be noted that option 2 could similarly be argued to meet the (minimum) requirement of TRIPs Art 27 "that patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. ...... without discrimination as to ..... the field of technology ".

Option 3 stretches the principles perhaps to breaking point in that no connection with technology would be required. Most experts would say that this goes beyond the basic principles of patent law. There is however the reply, which Judge Rich may have articulated in State Street Bank, that if a non-technological invention is new and unobvious and is useful in commerce or industry then society should encourage the making of such inventions and their use as basis for innovation by granting patents on them. We can only warn that the debate will continue.

See

http://europa.eu.int/comm/internal_market/en/intprop/indprop/study.pdf

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