Goals of the most important amendments: summary

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Keep in mind that what we present here is just one possible interpretation of the amendments. In some cases, less limiting interpretations are possible as well. The improvement compared to the Council version is that their text does not allow for any interpretation but one which mandates unlimited software patentability.

1. Effective exclusion of business methods

Amendment 47=79=100=121=142=165 to article 4.2 removes the "further technical effect" doctrine. It was introduced by the European Patent Office to grant patents on computer-implemented business methods.

2. Clarify the exclusion of "computer programs as such"

Amendment 46=78=99=120=141=164 to article 4.1 and 47=79=100=121=142=165 to 4.2 take away legal uncertainty by clarifying that the exclusion of (subject matter and activities within) computer programs as such from patentability means that innovations which do not solve any problems of applied natural science beyond the improvement of data processing efficiency shall not be patentable.

3. Provide a balanced yet meaningful definition for "technical"

By declaring "technical" as meaning "applied natural science" in amendment 42=74=95=116=137=160 to article 2(ba) (new), clearly non-technical fields such as mathematics and business methods can never be considered as technical. At the same time, it ensures that medical scanners and electronics will continue to belong to a field of technology.

4. Reduce the problem of trivial patents

Amendment 45=77=98=119=140=163 to article 2(b) and amendment 6 to article 3 state that the technical contribution must fulfil all conditions of patentability. Neither current EPO practice, nor the Council or JURI texts, require this.

5. Prevent patenting of information "objects", promote publication of information

Amendment 48=80=101=122=143=166 to article 5.2 makes sure that computer programs on their own cannot be patented. Amendment 49=81=102=123=144=167 to 5.2(b) guarantees that the freedom of publication of information must be taken into account when considering whether the distribution of a program is patent infringement or not (is it only distribution of information like distributing an instruction manual describing a patented process, or is someone actually distributing an enabling part of an invention?)

6. Remove the suggestion that software on its own is patentable

Amendment 40=72=93=114=135=158 to article 1 replaces the term "computer-implemented invention" with "computer-aided invention". The only thing that can be implemented in a computer is software. This amendment clearly indicates the directive is about technical inventions realised with the help of computer programs, not that the "invention" can lie entirely within the computer programs themselves.

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