Program Claims

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Program claims in a nutshell

Program Claims are patent claims of the form

• computer program, upon whose loading into the memory of a computer system the computation process according to Claim N is executed.

The wording "computer program" in the above can be replaced by "program on disk", "computer program product", "data structure", "computer readable medium" or other variants. The point is that the object of the claim is no longer a material product or process but a construct consisting of data, information or other abstract entities, optionally in combination with an unspecified and non-inventive carrier medium.

Program Claims in the directive proposal of the Council Article 5.2

The European Parliament plenary rejected a motion in favour of Program Claims by one Member of European Parliament. However Commissioner Bolkestein indicated in the Parliament's pre-vote debate they would consider program claims. While the Council did not follow the Parliaments Directive 23-09-2003 that solves the problem for software development they introduced program claims that were wiped out at all earlier stages. Article 5.2 in the Council version is an deceptive attempt to cover the inacceptable 'Program Claims'.

Article 5.1 Product and process claims

1. Member States shall ensure that a computer-implemented invention may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software.

Article 5.2: Program claims

1. A claim to a computer program, either on its own or on a carrier,

   shall not be allowed unless that program would, when loaded and executed in a computer, programmed computer network or other programmable apparatus, put into force a product or process claimed in the same patent application in accordance with paragraph 1.

The underlying scheme is "A shall not be allowed unless B is true" (where B can always be made true).

Article 5.2 is an explicit codification of program claims. It contradicts the interests of European software entrepreneurs and EU Parliament. With Article 5.2 in the proposal it can only be rejected by our stakeholders.

Program Claims and International Law

TRIPS Article 10.1,

“Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971) by Copyright <> patents.”

WIPO Copyright Treaty Article 4, “Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, *whatever may be the mode or form of their expression*”

Real examples of a program claim

• Google hits on "The computer program product of claim" in ffii patent data base

• Method and device for evaluating visits to web pages "17. Computer programme for implementing a method as claimed in

  • any one of claims 2 to 12 [...]
  1. Computer programme as claimed in claim 17, recorded on a
     • medium readable by a computer."

• Same example in swedish: Förfarande och anordning för utvärdering av konsultationer av webbsajter "17. Dataprogram för utförande av ett förfarande enligt något

  • av patentkraven 2-12 [...]
  1. Dataprogram enligt patentkrav 17, vilket är registrerat på
     • ett av en dator läsbart medium."

Program Claims News

• Commission had strong reservations (2004-04) against program claims deception (Article 5.2)

• Ambiguity in German council translations. Meaning of Article 5.2 in revised translation slightly shifted (German)

• Bolkestein's criticism of program claims at EU-Parliament (2004-23-2004), ogg-file