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"
"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
- have technical character and solve a technical problem,
- are new and
- provide an inventive technical contribution to the prior art.
- 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.
- 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.
- (1) "Effective, transparent and harmonised protection of