JuriNekontrib0505En

Article 4.2 a (new)

number

submitter

recommendation

text

111 = 112 = 113 = 115

Kudrycka and Zwiefka; Bertinotti; Kauppi; Ortega

++

Member States shall ensure that data processing solutions are not considered to be patentable inventions merely because they improve efficiency in the use of resources within data processing systems.

These amendments codify both UK case law (Gale's application) and Germany's case law (German High Patent Court's ruling in the Error Search case). As the German court found: if an improvement of efficiency in the use of computing resources, such as time or data space, is deemed to be a technical contribution, then all computer-implemented business methods become patentable.

Article 4 bis (new) (and 3.2 (new))

| number | submitter | recommendation | text | | 110 (4.2 a new) = 114 (4 bis new) = 92 (3.2 new) = 93 (3.2 new) = 95 (3.2 new) = 32 (4.2) | Ortega; Mastenbroek and Lichtenberger; Kudrycka and Zwiefka ; Bertinotti; Rocard | ++ | Member States shall ensure that data processing is not considered to be a field of technology within the meaning of patent law, and that innovations in the field of data processing are not considered to be inventions within the meaning of patent law. |

Ensures TRIPS compliance by making sure software does not belong to a "field of technology". Note that this does not exclude devices used for data processing from patentability. A computer can only perform data processing, but constructing a new kind of computer is an advance in electronic engineering and not in data processing.

Recital 14

| number | submitter | recommendation | text | | 13 = 226 | Rocard | - | Accordingly, whilst computer-controlled inventions belong to a technical field, because their technical contribution lies outside the software that controls them, implementation on an apparatus such as a computer of an otherwise unpatentable method, such as a business method, data-processing method or any other method, in which the contribution to the state of the art is not technical in nature, cannot under any circumstances be considered a technical contribution. Accordingly, such an implementation cannot under any circumstances constitute a patentable invention. | | 227 | Szejna | + | The mere applicationofan otherwise unpatentable method on an apparatus such as a computer is not in itself sufficient to warrant a finding that a technical contribution is present. Accordingly, a computer-implemented business method, data processing method or other method of a non-technical nature cannot constitute a patentable invention.|

Unfortunately, 13 = 226 actually introduce the notion that software can make a technical contribution, by specifically talking about the "technical contribution (that) lies outside the software that controls them" (suggesting there could also be one in the software).

227 nicely removes the suggestion that there can be technical business and data processing methods.

Recital 15

| number | submitter | recommendation | text | | 229 | Lichtenberger, Frassoni | o | If the contribution to the state of the art relates solely to unpatentable matter, there can be no patentable invention irrespective of how the matter is presented in the claims. For example, the requirement for technical contribution cannot be circumvented merely by specifying technical means in the patent claim. |

It's not entirely clear what the intention of this amendment is (replacing "claims" with "claim").

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