Most recent full copy of Directive on patentability of computer implemented inventions

xdrudis at xdrudis at
Thu Aug 14 19:47:08 UTC 2003

> On 14 Aug 2003 at 1:12, João Miguel Neves wrote:
> > > Once it's done though, it's done. We must have software patents.
> > > Luckily, the TRIPS wording as to what they must entail is quite
> > > vague.
> >
> > WRONG. There's nothing in TRIPS forcing software patents, no matter
> > how many people repeat that mistake:
> It says they must for "inventions for all fields of technology" if 
> I 
> remember. Ok, you can argue that software isn't an invention, but 
> you're on thin ground because software can be an industrial tool. 
> And 
> since any software program could be implemented purely in 
> electronics, you're scuppered because if an electronic machine can 
> be 
> patented (it can), and you can implement some of it in software, 
> ipso 
> facto software must be patentable. Wasn't there some German court 
> ruling on this?

I'm tired of the TRIPS fallacy. The experts commissioned by JURI 
itself denied it themselves. Just for the record:

<copypasting href="">
Some juridical analyses deny it [75]. The World Trade Organization (WTO)
TRIPS agreement requires that "patents shall be available for any
inventions in all field of technology, provided they are capable [...]
of industrial application". But this does not imply that software has to
be considered a field of technology, nor that it must be considered an
invention, nor that it has industrial application. Signing states must
define this, and no reason exists to to make everything patentable.

In any case, if an international agreement forced Europe to do things
contrary to public interest, the natural reaction  would be to use the
weight of the European Union to modify the agreement (or get out of it).

In case this quotation is meant to suggest that software must, by virtue
of the TRIPs agreements, be considered in a field of technology as the
CEC proposal would, Bakels and Hugenholtz come to mind. They are not the
only experts saying so, but respect for public money justifies a quote
from the study[12] commissioned by the JURI committee itself (page 14
and 15):

    Proponents of software patenting have argued that Article 27(1) does
not allow software from being excluded from patentability, since
computer software is to be considered a "field of technology". The
discussions preceding adoption of the TRIPs agreement, however, do not
confirm such a reading. In the absence of a legal definition of
"invention", the agreement arguably leaves it to the member states to
determine what constitutes a patentable invention, and whether or not
that includes computer software as such. 


    The TRIPs agreement requires patent protection to be available in
"all fields of technology". Arguably, this does not mandate patent
protection of computer programs per se. Surely, TRIPs does not prescribe
patentability of business methods. 

    The generally perceived need for world wide patent law harmonisation
should not lead to the conclusion that the European patent system must
follow U.S. developments automatically.


see also
which was already sent.

> Anyway, it's a null point. All the MEPs think it needs patenting. 
> And 
> they would sound incredulous if you tell them TRIPS doesn't mandate 
> it.
> > If you're talking to MEPs, please coordinate with europarl at
> > There are MEPs that are going to table ammendments that haven't been
> > presented yet, and it could be helpful to put the MEPs you're
> > contacting with others from the same political group.
> First time I've heard of that list. When did it arise?

No. Not all MEPs want software patents. Maybe most want, but it's 
not such a terrible majority. 
For instance, read:

What is true is that it's a little complicated subject and all MEPs I've
talked to don't understand it
fully and it's easy for them to take insufficient measures. But the
absurdity of software patents is not so difficult to explain, with a 
little care and politeness most people understand it. Theproblem is thee
are 626 MEPs and they need to understnad it very well, spend some time 
on it, and really do something, not only sympathize with the idea. I'm
sure many will, we just need that there are enough of them.

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