JuriVarlim0505En

Article 5.2 a/b (new)

number

submitter

recommendation

text

136

Lehne

o

Where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or process, such use will not constitute patent infringement.

137

Harbour

-

A claim as described in paragraph 2 only gives protection for the use which is described in the respective patent.

138

Szenja

o

Member States shall ensure that using computer programs for purposes not contained in the scope of a patent claim cannot be taken as direct or indirect breach of patent law.

139

Lichtenberger, Frassoni

o

Member States shall ensure that the use of a computer program for purposes that do not belong to the scope of the patent cannot constitute a direct or indirect patent infringement.

142

Kauppi

o

Limitation of the effects of a patent / The rights conferred by patents for inventions within the scope of this Directive shall not extend to: / a. acts done privately and for non-commercial purposes, / b. acts done for experimental purposes relating to the subject-matter of the patented invention, including non-commercial academic and research use.

136, 138 and 139 repeat a general principle from patent law: the scope of patent law by definition only extents to what is claimed. 137 additionally depends on the assumption that program claims are included.

142 also repeats some general principles from patent law.

Recital 17

| number | submitter | recommendation | text | | 17 | Rocard | + | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-controlled inventions should be claimed solely with reference to either a product such as a programmed apparatus, or to a technical process carried out in such an apparatus. Accordingly, where individual elements of software are used in contexts which do not involve the realisation of any validly claimed product or technical process, such use will not constitute patent infringement. | | 237 | Lichtenberger, Frassoni | + | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. Computer-controlled/assisted inventions should be claimed only with reference to either a product such as a programmed apparatus, or to a technical process carried out in such an apparatus. | | 238 | Kauppi | ++ | The scope of the exclusive rights conferred by any patent is defined by the claims, as interpreted with reference to the description and any drawings. |

17 and 237 talk about the form of the claim (no program claims, which is good), and again repeat some general principles of patentability (usage not mentioned in the claims is no infringement).

238 simply removes the suggestion of the Council that an individual element of software could constitute patent infringement.

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