Transcription from EPO ITRE, 2005-03-30
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A (track5, 10:38)
Let me first try to address the first question that you posed, whether data processing should be totally excluded from being protectable by patents. I think that if a technical problem---in the sense that we have discussed what 'technical' might be perceived to be---if a technical problem is being solved partly or totally with the help of modern computer technology, for instance, data processing, then the fact that it is this technology that has been used to solve the problem should not automatically exclude this subject matter from protection by patent.
In other words, modern technology has paved the way for solving problems that were not perceivable when the patent law was written down, by means of a computer program. This doesn't change automatically the fact that these solutions are worth to be protected; they are solutions to technical problems, they are in principle subject matter which is not excluded by the exclusions of patent law, and in this sense the patent protection should be accessible to them. So the answer to your question is that if we were to exclude totally whatever is been performed by data processing from patent protection, then we wouldn't act in the sense of the people who wrote the law. It was at that time, when the patent law was written, and that was the seventies, and in the seventies a computer program had certain limited functionality and you could even read the code of a computer program, for instance an old COBOL program, and you could even understand what it does. The functionality that is been able to offer today with the help of a computer program has dramatically changed, and it would be not in the sense of the legislator if we would automatically exclude from patent protection whatever functionality can be achieved nowadays by means of modern computer technology.
(Question/clarification barely heard, containing the word "synergy".)
I am not a lawyer, and therefore I will not tell you anything which you might think that this is an official opinion of a lawyer; it's my personal view. Modern industrial property, and the efficient regulation of modern industrial property, takes a little more than just patent law---that's my personal view---and I see that there is a huge potential in regulating the field in a synergy between the patent law on one side and other forms, other possibilities, other legal possibilities available nowadays, and one of them is competition law. That's my personal view.
Q (track 5, 14:28)
I'm still uneasy about the answer I got about the disclosure, full disclosure. I think that the last answer was referring to the programs from the seventies is just a confirmation of that; actually, at that time, we had full disclosure, so we could go through a program and see the specific steps, and somehow it might have been ground 4 issuing a patent. Right now I think that things have become more complex, but still source code is source code and all the experts could go through the source code and see what is there. And of course a patent is full disclosure of the invention, and I don't think that we should make any exception, and of course this kind of work of thought could be protected by copyright. So full disclosure would actually shift to copyright for appropriate protection for this kind of work of mind, and leave of course more clear the field to device implemented invention, and that would me more or less automatic. On the other hand, we need, for security reasons, we do need to know the source code we are using, because we are not sure that in some line there is something that can be addressed from the outside and kill our computers.
A (track6, 01:50)
There is a lot of arguments used in favour of disclosing the source code. As I said, what is necessary under the existing patent law, 'sufficient disclosure' means that the invention has to be disclosed to a person skilled in the art in a manner to enable him to carry out the invention. This is a good example of synergy between patent law and copyright law: copyright law is there for protecting the form, the expression which may find itself realized in form of source code, of object code, or other kinds of description of software. So you enjoy copyright protection under the conditions of the old European directive now implemented in the entire Europe. You have full protection on the source code, and on the other hand you could have protection on the idea, the technical idea of making a certain process (?) carrying out an invention which makes use of a computer, a computer network etc. So the two systems coexist, necessarily they coexist. You have the patent, and the invention patented may be carried out by using different forms of computer programs, not only the source code disclosed in the application, wherever this would be necessary, but you can use it in different ways, you can use higher languages to implement one invention in many many different ways, and then, you enjoy, in addition to patent protection, you may enjoy copyright protection for this program. But the patent itself would be enforceable against a user which would use the invention as disclosed, without even using a program which may be described in the application.
That's the synergy. This is, I think, the most important thing: the patent system is not there to disclose and to make available anything in terms of source code, so that you have a database of all source codes used and developed. You will never be sure that this is a system which completely discloses every source code used for whatever purpose. This was the idea of a sui generis protection for software discussed in the framework of WPO to create a database of all source codes, object codes etc. were ever produced, in order to get copyright protection, by the way, not patent protection. So I think we have a good case of synergy between two systems, copyright and patent law, and, on the other hand, there are clear limits of disclosing the source code in patent applications.
Q (track6, 05:05)
Just before we conclude, I think the President wants to say a few words, but I also really wanted you perhaps to address a more global issue. I think sometimes there is a view that patents are really only there for big business, and that SME's don't have advantages, or the same advantages, as multinationals, perhaps, and I wondered what the EPO is doing to try and redress this imbalance and to make sure that generally small and medium sized companies have access to patent protection as well.
A (track6, 05:33)
For this specific issue there is two aspects. One aspect is access of (?) patent information for SME. The second one is that we have a European Patent Academy to train all the SME (?) in managing patent portfolio. The third one is that we are training also people in order that they use the (?) tools to know patent information.
note: In this world there are three types of people: those who can count and those who can't.
These are the main issues and we will have a meeting with SME's to better know what are the needs in terms of patent information and patent portfolio assessement.
So the other thing I would like to say is that, first, we could have a whole seminar for the whole day with more comfortable facilities, but nevertheless we are ready before the adoption of the directive to organise a meeting with and next four which will be more properly targeted to the directive on cii. We will have more facilities because it seems that many people are interested (?) first point, and we are willing to interact with all movement involved in the drafting of this directive. That's the first point. The second point is that I would like to remind the fact that it's the policy of EPO in patenting cii is no patent on pure software, first point; no patent on business methods; and no patent on algorithms per se. I think these are the three main messages that you should keep in mind, and if you want more information, go to the patent presentation, the exhibition we have in the third floor, you will have all the leaflet and documents that you need, and there is one specific document on cii. Thank you again for organising and giving the opportunity to have this seminar here, in the real heart where the second lecture of the directive will occur. Thank you very much.
(track6, 07:59)
Thank you. To conclude, I think we've really only skimmed the surface of some of these issues. I think there are a lot more in-depth questions that we would want to ask, and I would be very grateful for the circulation of the papers that your colleagues have given and including your speech, and I'm sure that you will be accessible for people to follow up on the specific questions will have.
