¿Se abrirán las compuertas?
A continuación se incluye un informe de la agencia británica Reddie & Grose, sobre la patentabilidad de las invenciones implementadas en ordenador en la UE.
We have been patenting computer-implemented inventions in Europe for at
least two decades even though the European Patent convention, and the
national laws of countries party to that convention, states that a
"program for a computer" is not patentable "as such".
Case law has pushed back the boundaries: a claimed invention is not a
program for a computer as such if there is a technical contribution,
technical effect or technical considerations (depending upon which
precedent you wish to argue). Consequently, patents have been granted
by the European Patent Office and National Offices for computer
implemented graphics processing systems, trading systems, financial
data processing and many other fields. These have all been deemed
sufficiently "technical" and, therefore, patentable because they are not programs "as such".
On 18 May 2004, the Competitiveness Council adopted a Common Position on the proposed EU Directive on the Patentability of Computer-implemented inventions as put forward by the EU Presidency. This brings a directive, which would harmonise the law on this issue in all EU states, a step closer. Will this open the floodgates to patenting of sorts of computer programs?
Key terms in the proposed directive include:
- A computer-implemented invention is patentable only if there is
a "technical contribution" meaning a contribution in a field
of technology that is new and not obvious.
- Computer implemented inventions shall not be regarded as making
a technical contribution merely because it involves a computer.
- Inventions involving computer programs, which implement
business, mathematical or other methods, which do not produce
any technical effect beyond normal physical interactions
between a program and a computer, are not patentable.
The language of these terms largely reflects the language of many decided cas s of the European Patent Office. Indeed, a further term "a computer program as such cannot constitute a patentable invention" is virtually taken direct from the European Patent Convention we have had since the 1970s. Taken together, these terms in the proposed directive would mean inventions whose only contribution is in a business; mathematical or other such non-technical field would remain unpatentable as they are now.
Inventions where there is some improvement in terms of processing speed, message flow or control of other technical process would continue to be patentable as they have been for many years.
The Reddie & Grose view is that the proposed directive in its current
form codifies existing European Patent Office precedents and, in that
sense, it is not all change in Europe, but is more of the same. There
is no significant shift in patentability. Of course, the phrase
"technical" remains undefined, allowing scope for arguing the boundaries patentability. However, the phrase does not have an arbitrary meaning and has been applied by the European Patent Office and national offices for a number of years in many decided cases.
To take an example from a recently decided UK patent application
(refused) a computer program, which produces a schedule for undertaking
work involving various steps of computation of data, was denied
patentability. The end result of the processing was simply "a list of
what work can be performed in what order and on which days.. The fact
that this could be done more efficiently did not provide the necessary
technical contribution."
The word "technical" has been applied in a similar way on many other
cases and can be contrasted with the test of "useful", as applied in
the United States, in relation to which many fields have been deemed
useful, which are unlikely to be deemed "technical" in Europe. Our
view, at Reddie & Grose, is that directive in this form would harmonise
the position across Europe to the position already adopted by the
European Patent Office. The floodgates, though, would remain closed.
We have been patenting computer-implemented inventions in Europe for at
least two decades even though the European Patent convention, and the
national laws of countries party to that convention, states that a
"program for a computer" is not patentable "as such".
Case law has pushed back the boundaries: a claimed invention is not a
program for a computer as such if there is a technical contribution,
technical effect or technical considerations (depending upon which
precedent you wish to argue). Consequently, patents have been granted
by the European Patent Office and National Offices for computer
implemented graphics processing systems, trading systems, financial
data processing and many other fields. These have all been deemed
sufficiently "technical" and, therefore, patentable because they are not programs "as such".
On 18 May 2004, the Competitiveness Council adopted a Common Position on the proposed EU Directive on the Patentability of Computer-implemented inventions as put forward by the EU Presidency. This brings a directive, which would harmonise the law on this issue in all EU states, a step closer. Will this open the floodgates to patenting of sorts of computer programs?
Key terms in the proposed directive include:
- A computer-implemented invention is patentable only if there is
a "technical contribution" meaning a contribution in a field
of technology that is new and not obvious.
- Computer implemented inventions shall not be regarded as making
a technical contribution merely because it involves a computer.
- Inventions involving computer programs, which implement
business, mathematical or other methods, which do not produce
any technical effect beyond normal physical interactions
between a program and a computer, are not patentable.
The language of these terms largely reflects the language of many decided cas s of the European Patent Office. Indeed, a further term "a computer program as such cannot constitute a patentable invention" is virtually taken direct from the European Patent Convention we have had since the 1970s. Taken together, these terms in the proposed directive would mean inventions whose only contribution is in a business; mathematical or other such non-technical field would remain unpatentable as they are now.
Inventions where there is some improvement in terms of processing speed, message flow or control of other technical process would continue to be patentable as they have been for many years.
The Reddie & Grose view is that the proposed directive in its current
form codifies existing European Patent Office precedents and, in that
sense, it is not all change in Europe, but is more of the same. There
is no significant shift in patentability. Of course, the phrase
"technical" remains undefined, allowing scope for arguing the boundaries patentability. However, the phrase does not have an arbitrary meaning and has been applied by the European Patent Office and national offices for a number of years in many decided cases.
To take an example from a recently decided UK patent application
(refused) a computer program, which produces a schedule for undertaking
work involving various steps of computation of data, was denied
patentability. The end result of the processing was simply "a list of
what work can be performed in what order and on which days.. The fact
that this could be done more efficiently did not provide the necessary
technical contribution."
The word "technical" has been applied in a similar way on many other
cases and can be contrasted with the test of "useful", as applied in
the United States, in relation to which many fields have been deemed
useful, which are unlikely to be deemed "technical" in Europe. Our
view, at Reddie & Grose, is that directive in this form would harmonise
the position across Europe to the position already adopted by the
European Patent Office. The floodgates, though, would remain closed.
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