Talk:Software patents under TRIPs Agreement/Archives/2013

Removed external link of doubtful credibility
I removed the following link from the External link section: (see edit ). The credibility of the linked article is doubtful and somewhat vanity (presumably inserted by his author - compare names). Two reasons: As of today, the European Patent Convention is not in force in Malta, which is member of the EU. I think a wikipedia article should not point the reader towards erroneous sources of information. The purpose of an encyclopedia is to point towards reference links, not just random external articles. --Edcolins 14:09, July 19, 2005 (UTC)
 * 1) The article has no date.
 * 2) And since it seems it was written in 2005, it contains a gross factual mistake at the very beginning : "The European Patent Convention is in force in all EU Member States."

Thanks for catching the factual mistake you mentioned and removing that link. I confirm that in fact I inserted this link to my own article. Another reason including this link might be doubtful lies in the fact that the article was written on a request by FFII, which is one of the parties in this debate. Thanks again.

--Karl-Friedrich Lenz

misleading summary
Please excuse my misleading formulation, english is not my native language. But maybe you can help me to make the following clear:
 * TRIPS Art. 13 makes provisions to the exception of rights of authors of artistic works like computer programs.
 * TRIPS Art. 30 makes provisions to the exception of rights of inventors.
 * Authors of computer programs are third parties to patent owners with legitimate interests.
 * TRIPS Art. 30 declares that these interests have to be taken into account.
 * Member states (with IPO and courts) have to find a reasonable balance between both legitimate interests.

Correct me if I am wrong. Swen 13:51, 20 May 2008 (UTC)


 * I don't think the misleading formulation has anything to do with your knoweldge of English, but rather the impression you were attempting to give.
 * Art 30 says nothing about computer programmers and its main thrust is to do with limiting the exceptions on patent rights. The mention of third parties is only at the end and at first glance is an afterthought or at least a minor part of the Article. Summarising Art 30 in the article by saying that it's to do with protecting the interests of computer programmers, or any third party, is placing undue weight on a seemingly minor aspect of the Art. Unless there is a reliable source saying that this Art is primarily to do with protecting the rights of computer programmers or that that is one of its major effects, then it is Original Research for us to make such a statement in the article. Saying that Art 30 means that "Member states (with IPO and courts) have to find a reasonable balance between both legitimate interests" would definitely be OR without a source to back it up. GDallimore (Talk) 14:07, 20 May 2008 (UTC)


 * Ok, I see your problem. My problem remains that the wording of Art. 30 is for me no Original Research. But you are right, I made a systematic connection between two articles of TRIPS (requirement of internal consistency). In the german BGH decision "Dispositionsprogramm" last paragraph from 1977 there is such a systematic separation between patent right and other intellectual property (requirement of external consistency). But that was before TRIPS. If I look at the TRIPS explanations I find the Basic principle of "balanced protection" with the second paragraph: "The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says." I don´t think that making this connection between Art.30 and the explanation from the original source is OR. If so, ok lets write an article. Swen 15:35, 20 May 2008 (UTC)  —Preceding unsigned comment added by Swen (talk • contribs)


 * Maybe you have a look at Westkamp page 23ff with his explanation about TRIPS and the patent/copyright dichotomy: "There is a certain case for this, in that the criteria for IP allocation may be regarded as definite as long as protection is sought for technology, articulating the overriding rationale of technology protection as broad as possible. This restricts opportunities to grant quasi-IP rights in endeavours either enumerated in TRIPs or classifiable as copyright or patent. But yet again, software protection demonstrates the pitfalls of such narrow view since it is based upon pragmatic rather than ontological considerations." --Swen 10:00, 28 May 2008 (UTC)

"remove Art 30 reference - I've just realised that this has nothing to do with the relationship with copyright protection at all."
 * Sorry about that. Swen 17:54, 20 May 2008 (UTC)
 * Maybe you consider Westkamp page 29f under "Legitimate Aims and Proportionate Measures: Some Possible Starting Points": "Perhaps the most promising solution is to include provisions in TRIPs which set forth a balancing test applicable to all forms of deviation from its acquis." Or see Yu page 948: "Should we challenge students to think critically about the nature of those rights and to evaluate alternative models to promote creativity and innovation (including free and open source software development, open access formats, and other open and collaborative models)? Is the international intellectual property debate more about the fundamental question of the system’s existence than about the balance of the system?" --Swen 10:00, 28 May 2008 (UTC)

Recent addition

 * The text below was recently added to the article:

Still, the fact that so far no formal objections were raised that European countries only grant patents for (sufficiently) technical inventions implies that factually this limitation is accepted, e.g. by the United States. Nonetheless, the purpose of art. 27(1) TRIPS is not to limit, but to extend the realm of patentable subject matter. At the time it was agreed, in many countries the patentability of medicines was still limited, and TRIPS intended to extend patentability into all fields of technology.

TRIPS only requires patents to be granted for inventions, without defining this concept. The rules for treaty interpretation, as laid down in the Vienna Convention on the Law of Treaties (art. 31(1)), do not allow the application of e.g. a specific European definition of the invention concept in the TRIPS context. The American perception of the invention concept is different. While e.g. European patent law explictly says that scientific discoveries as such are no inventions in art. 52(2a+3) EPC, the American patent statute in Section 100(a) says exactly the opposite. Still, there is some agreement worldwide that overly abstract ideas are not patent-eligible, which would allow TRIPS-compliant exclusion.

Allegedly, software patents suffer from abstractness. But, in an American case about an automatic heart rhythm failure detection device, initially the patent application was rejected, because the invention was basically merely a (software) algorithm, which as deemed to be "abstract". But the court decided, that saving lives, the purpose of the invention, definitely was not an "abstract" purpose, and allowed the patent.

Patents for genuinly abstract ideas would potentially give an excessively wide protection for a limited achievement. Such patents would amount to a "hunting licence", as an American court once noted. Some software patents are indeed limited to mere ideas. But they do not satisfy the disclosure requirement (art. 83 EPC, 35 USC § 112): a patent is supposed not just to identify but to solve a problem, "without undue experimentation"

A different perspective
Software copyright both under US and European law only protects the actual code, not the underlying ideas and principles. This does not mean that these ideas and principles must be protected by patent law, but there is no conflict either if they are projected. If software patents would really constitute a duplication, why would one spend a lot of effort, time and money in order to obtain maximum twenty years of patent protection from the moment of grant, while copyright provides free of charge protection until 70 years after the death of the author?

Indeed software patents may limit the exercise of software copyright. But this is nothing special: accumulation is quite common in the law of "intellectual property". E.g. translators can not exercise their (own) copyright if the original author does not allow that, exercising his copyright. Trademarks of sufficient originality can also be protected by copyright. In sum, the existence of software copyright is not a reason to conclude that software patents are against the law. Whatever anti-software activists argue (e.g. FFII, see http://www.ffii.org), scientific literature does not see a conflict.