EPO launched a "microsite" about "computer implemented inventions"

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One month after the European parliament has rejected the proposed directive on "patentability of computer-implemented invention", best known as directiv on software patents, the European Patent Office has set up a microsite about the so-called-CII.

EPO "Microsite"

• http://cii.european-patent-office.org/

"This microsite has been set up to provide information about

• the law and practice under the European Patent Convention in the field of computer-implemented inventions
• proposed legislative reforms in Europe in this field"

• See also an associated brochure

The first part of this microsite recalls the current legislation in Europe, recalling that Member States of the European Patent Organisation have harmonised national patent laws with the EPC, which prevent patenting of computer programs and business methods as such. Nethertheless, it reaffirms current EPO doctrine to consider that some softwares can be considered to be not-as such, given their technical character (without defining what "technical" means other by tautologism), and thus can be patented. It also claims that EPO do not grant patents on business methods, despite studies and collected examples that have proven the opposite.

EPO itself is repeating many of the myths which were denounced by FFII during the legislative process of the EU directive on software patents:

• The alleged claim for harmonization was just a smoke screen, since almost every EU Member state (Malta is still an exception) has also signed the European Patent Convention (EPC), and has already harmonized its domestic patent law according to EPC.
• The term "computer-implemented invention" relates to softwares.
• The EPO's drift that has lead to grant patents on softwares and business methods is tied to an ideology reinterpreting the clear exclusion written down in EPC.

Then, there is a review of failed attempts to legalize patenting of softwares in Europe: first, the "Diplomatic Conference to revise the EPC", second, the "Proposed EU directive on the patentability of !CIIs".

Concerning the brochure, it reintroduces the same lie that EPO is not delivering patent on "pure" softwares, nor on business methods, giving the usual examples of ABS breaking system as an example of granted patent, which nobody contests, but failing to give any example of patents already granted on data processing.

Moreover, the brochure looks like a commercial ads praising "high quality and high legal certainty" of EPO's patents, invoking the anteriority search and the opposition procedures, while these are well-known to be insufficient. The brochure concludes on another myth: the benefits of patents for SMEs, while the Economic Majority is claiming the opposite.

Gérald Sédrati-Dinet, FFII vice-president, pointed out:

• The objective of this "microsite" is unclear. It gathers informations, opinions and doctrines that are well-known to reflects the recent EPO practice to grant patent concerning softwares and business methods. This is exactly what was rejected both during the EPC Diplomatic Conference in 2000 and by the European Parliament on July 2005. This microsite is kind to recall in some short lines what has failed to be legalized. Maybe we can see this as a memorandum to keep tracks of a dead practice that has lived. As, warned by Rapporteur Rocard on the press conference that has followed the rejection of the directive: "European Patent Office has around 30,000 litigious patents -- litigious, that is embodying software in the nature of the patent. By refusing this, we send a message to EPO: there is no more a majority to cover you, be carefull with your case law, it is clear, given the amazing awareness on this subject, that would this practice continue, a parlementary majority will arise to frame it, and even to forbid it, ineluctably and in a little while."

Some quotes

• According to a generally accepted and widely used definition, a
  • computer-implemented invention (CII) is an invention whose
  implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program. All the 31 member states of the European Patent Organisation have national patent laws whose basic provisions, in particular the patentability requirements, have been harmonised with the EPC. As with all inventions, computer-implemented inventions are only patentable if they:
  • have technical character and solve a technical problem,
  • are new and
  • provide an inventive technical contribution to the prior art.
  The European Patent Office (EPO) does not grant patents for computer programs or computer-implemented business methods that make no technical contribution. In this respect the granting practice of the EPO differs significantly from that of the United States Patent and Trademark Office (USPTO). Whilst the EPC sets out the patentability requirements of novelty, inventive step and industrial application in some detail (Article 54, Article 56 and Article 57 EPC), it does not contain a legal definition of the term "invention". It has, however, been part of the European legal tradition since the early days of the patent system that patent protection should be reserved for technical creations. The subject-matter of a patentable invention must therefore have a "technical character" or, to be more precise, involve a "technical teaching", that is an instruction addressed to a skilled person as to how to solve a particular technical problem using particular technical means. Although the EPC does not define the term "invention", it does contain a list of subject-matter and activities that are specifically excluded from patent protection on the grounds that they are not considered as having a technical character. The subject-matter and activities are listed in Article 52(2) EPC, which stipulates that they are not to be regarded as "inventions" within the meaning of European patent law. The list is not exhaustive but enumerates the major exclusions, including "methods for doing business" and "programs for computers". It should be emphasised that, under Article 52(3) EPC, these exceptions have to be interpreted narrowly. The subject-matter and activities on the list are only non-patentable if the European patent application or European patent relates to them as such. Therefore, inventions having a technical character which are or may be implemented by computer programs may well be patentable. The granting practice of the EPO and the case law of the boards of appeal (an independent body which reviews the decisions of the EPO in grant and opposition proceedings - see Article 106 EPC) are based on this interpretation of the term "invention". In June 1999 the member states of the European Patent Organisation gathered in Paris at an intergovernmental conference on the reform of the patent system in Europe. The mandate adopted by the Conference stated that "it is desirable to eliminate any ambiguity regarding the patentability of inventions involving software" and requested the Organisation to "prepare a revision conference to be convened in the year 2000 with a view to adopting a revised text relating in particular to Article 52(2) EPC" Article 52(2) EPC excludes computer programs as such from patentability. The Diplomatic Conference to revise the EPC took place in November
• The patentability of computer programs was one of many revision points submitted to the Conference. It was proposed that programs for computers be deleted from the list in Article 52(2). The Conference however decided to leave Article 52(2) EPC unchanged. On 20 February 2002 the European Commission presented a proposal for a directive on the patentability of computer-implemented inventions. The recitals accompanying the proposal explain the background to the Commission's initiative:
  • (1) "Effective, transparent and harmonised protection of
    • computer-implemented inventions throughout the Member States is essential to maintain and encourage investment in this field.
    (2) Differences exist in the protection of computer-implemented
    • inventions offered by the administrative practices and the case law of the Member States. Such differences could create barriers to trade and hence impede the proper functioning of the internal market.
  On 6 July 2005, the European Parliament, in the second reading, rejected the proposed directive by 648 votes to 14 with 18 abstentions. This terminates the legislative procedure. The Commission has indicated that, for the time being, it does not intend to present a new proposal for legislation in this field.