Software patents under TRIPs Agreement
Encyclopedia
The WTO
's Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs), particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software
, and on whether software and computer-implemented invention
s should be considered as a field of technology
.
The only acceptable exceptions to this provision are laid down in the paragraphs 2 and 3 of the same Article 27. The following elements may be excluded from patentability by WTO members under TRIPs:
However as Paul Hartnack, then Comptroller-General of the UK Patent Office
, commented in 1998:
The rules for in interpretation of international treaties, do not allow specific European perceptions on terminology to be considered for TRIPS interpretation: in art. 31(1) it requires "ordinary meaning to be given to the terms of the treaty". The same provision requires interpretation within the light of the object and purpose of the treaty, which leaves little room for "sound economic reasons" for legal interpretation purposes. The decision of the contracting states of the TRIPS Agreement was that patents should be granted in all fields of technology, without discrimination (Art. 27(1) TRIPS).
To date, the interpretation of Article 27 has been tested in the 2002 dispute between the U.S. and Argentina over patent protection for pharmaceuticals (which was solved by mutual agreement) and the 2000 panel report also on patent protection for pharmaceuticals, in a case brought by the EU against Canada.
However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the domains of, for example, computer-implemented business methods
, computer science
and software information technology
remains uncertain, since the TRIPs agreement is subject to interpretation, like all legal texts.
is a type of work which is eligible for protection under copyright
law:
This argument was used by some adversaries of software patents to contend that software patents would not be allowed by the TRIPS agreement.
TRIPS textbooks don't see a conflict, for instance Correa & Yusuf
notes that software patents complement copyright because copyright does not protect underlying ideas.
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
's Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPs), particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software
Software patent
Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
, and on whether software and computer-implemented invention
Invention
An invention is a novel composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived, in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social...
s should be considered as a field of technology
Technology
Technology is the making, usage, and knowledge of tools, machines, techniques, crafts, systems or methods of organization in order to solve a problem or perform a specific function. It can also refer to the collection of such tools, machinery, and procedures. The word technology comes ;...
.
Article 27 of TRIPs
Article 27 paragraph 1 of TRIPs states that:- "(...) patentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are newNovelty (patent)Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
, involve an inventive stepInventive step and non-obviousnessThe inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented....
and are capable of industrial applicationIndustrial applicabilityIn patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this...
. (...) patents shall be available and patent rights enjoyable without discriminationDiscriminationDiscrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
as to the place of invention, the field of technology and whether products are imported or locally produced."
The only acceptable exceptions to this provision are laid down in the paragraphs 2 and 3 of the same Article 27. The following elements may be excluded from patentability by WTO members under TRIPs:
- (...) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.(paragraph 2)
- diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (paragraph 3(a)) and
- plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. (...) (paragraph 3(b)).
However as Paul Hartnack, then Comptroller-General of the UK Patent Office
United Kingdom Patent Office
The Intellectual Property Office of the United Kingdom is, since 2 April 2007, the operating name of The Patent Office. It is the official government body responsible for intellectual property rights in the UK and is an executive agency of the Department for Business, Innovation and Skills...
, commented in 1998:
- Some have argued that the TRIPS agreement requires us to grant patents for software because it says "patents shall be available for any inventions.....in all fields of technology, provided they are.....capable of industrial application". However, it depends on how you interpret these words.
- Is a piece of pure software an invention? European law says it isn’t. Is pure software technology? Many would say no. Is it capable of "industrial" application? Again, for much software many would say no.
- TRIPS is an argument for wider protection for software. But the decision to do so should be based on sound economic reasons. Would it be in the interests of European industry, and European consumers, to take this step?
The rules for in interpretation of international treaties, do not allow specific European perceptions on terminology to be considered for TRIPS interpretation: in art. 31(1) it requires "ordinary meaning to be given to the terms of the treaty". The same provision requires interpretation within the light of the object and purpose of the treaty, which leaves little room for "sound economic reasons" for legal interpretation purposes. The decision of the contracting states of the TRIPS Agreement was that patents should be granted in all fields of technology, without discrimination (Art. 27(1) TRIPS).
To date, the interpretation of Article 27 has been tested in the 2002 dispute between the U.S. and Argentina over patent protection for pharmaceuticals (which was solved by mutual agreement) and the 2000 panel report also on patent protection for pharmaceuticals, in a case brought by the EU against Canada.
However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the domains of, for example, computer-implemented business methods
Business method patent
Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking, tax compliance etc. Business method patents are a relatively new species of patent and there have been several reviews investigating the...
, computer science
Computer science
Computer science or computing science is the study of the theoretical foundations of information and computation and of practical techniques for their implementation and application in computer systems...
and software information technology
Information technology
Information technology is the acquisition, processing, storage and dissemination of vocal, pictorial, textual and numerical information by a microelectronics-based combination of computing and telecommunications...
remains uncertain, since the TRIPs agreement is subject to interpretation, like all legal texts.
Relationship with copyright protection
Article 10 paragraph 1 of TRIPs provides that a computer programComputer program
A computer program is a sequence of instructions written to perform a specified task with a computer. A computer requires programs to function, typically executing the program's instructions in a central processor. The program has an executable form that the computer can use directly to execute...
is a type of work which is eligible for protection under copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law:
- "Computer programs, whether in source or object code, shall be protected as literary works under the Berne ConventionBerne Convention for the Protection of Literary and Artistic WorksThe Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
(1971)."
This argument was used by some adversaries of software patents to contend that software patents would not be allowed by the TRIPS agreement.
TRIPS textbooks don't see a conflict, for instance Correa & Yusuf
notes that software patents complement copyright because copyright does not protect underlying ideas.
See also
- Aerotel v Telco and Macrossan's ApplicationAerotel v Telco and Macrossan's ApplicationAerotel v Telco and Macrossan's Application is a judgment by the Court of Appeal of England and Wales. The judgment was passed down on 27 October 2006 and relates to two different appeals from decisions of the High Court. The first case involved granted to Aerotel Ltd and their infringement action...
- Proposed EU Directive on the patentability of computer-implemented inventionsDirective on the patentability of computer-implemented inventionsThe Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions , procedure number 2002/0047 was a proposal for a European Union directive aimed to harmonise national patent laws and practices concerning the granting of patents...
- Idea-expression divideIdea-expression divideThe idea–expression divide or idea–expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.The case of Baker v. Selden was the first U.S...