Patents, European Patent Office
Extract 1 : Introduction & Differences
Extract 2 : A shift from non-Patentability? & A state of flux
Extract 3 : Mood for change & EPO Proposal
Critically Evaluate the Jurisprudence of the European Patent Office and English law in relation to the patenting methods of computer programs and business methods. Do you think that European commission proposals to reform the law in this area will assist a coherent development of the law in these areas ?.
Contents
Introduction
Difference between copy right and patent
References
Introduction
The struggle for the patentability of computer programs and business methods has been a battle long fought by parties who stand to benefit in the business world. With the EU directive it appears that the battle has been won. But at what expense?
Where Did It All Begin?
The Patents Act 1977 (PA '77) is the main legislation governing patents. The act made significant changes to English patent law, and its purpose was to give effect to the European Patent Convention 1973 (EPC '73), and bring the UK into line with the rest of Europe. The main issue is that the Act expressly excludes the granting of patents for computer programs and business methods.
(1) A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say -
(a) the invention is new;
(b) it involves an inventive step;
(c) it is capable of industrial application;
(d) the grant of a patent for it is not excluded by subsections (2) and (3) below;
and references in this Act to a patentable invention shall be construed accordingly.
(2) It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of -
(a) a discovery, scientific theory or mathematical method;
(b) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever;
(c) a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer;
(d) the presentation of information;
but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such.
(3) A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality
The above provision mirrors that of the EPC below :
European Patent Convention: Article 52
(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
(2) The following in particular shall not be regarded as inventions within the meaning of
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such
(4) Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body shall not be regarded as inventions which are susceptible of industrial application within the
meaning of paragraph 1 This provision shall not apply to products, in particular substances or compositions, for use in any of these methods.
With the presence of these exclusions those seeking to protect intellectual property in the form of computer programs (software) and business methods relied on the Copy Right Act 1998. Although both instruments protect against the exploitation of intellectual property, there is a difference in the nature of the protection offered. Examining this difference will lead to a greater understanding of why there has been a push for patent rights for business methods and software.
Difference between copy right and patent
A copy right is a right to control the use of the item in which the right is held. The copy right applies to form and not the content of the item. For instance a copy right in a poem cannot exist until it is written down or expressed in one way or another. Copyright is an automatic right and is granted at the point of creation. The author, designer etc already has copyright in his or her creative work as soon as it is created. To control the use of the item the creator needs to be able to prove originality. The requirements for the acquisition and exploitation of copy right in relation to computer programs and business methods are laid out in S. 3A of the Copyright Patents and Databases Act 1988. The right guards against the reproduction of the original work.
On the other hand a patent protects a new invention which is capable of industrial application. An inventor who satisfies the conditions of the patents act is granted a monopoly over the new product or process , and thus receives protection from comptetition. No one else can exploit the item commercially once it is patented. Unlike a copyright which does not protect against an identical or substantially identical program created without the knowledge of an existing copyright. The patent protection lasts for 20 years. The substance of the patent is to protect the innovation or idea as opposed to the form as in the case of a copyright.
The Green v. Broadcasting Corporation of New Zealand1 highlights the practical difference. 'The claimant presented a television show in England called "Opportunity Knocks". In 1975 and 1978 the respondent broadcast a similar show under the same title in New Zealand. G commenced an action for passing off and infringement of copyright, claiming that copyright subsisted in the "scripts and dramatic format" of the show, and relied largely on the use of stock phrases, and a device called a "clapometer" for measuring audience reaction.'2 He tried to assert a right in the process, i.e the format of the show , but failed. Thus he could not obtain protection form a competitor utilizing the same idea. It is this commercial advantage (which was lost here) that is secured by the use of a patent that makes it a more attractive instrument in the commercial sphere.
REFERENCES
- Keith Beresford, 'Patenting software under the European Patent Convention', Sweet & Maxwell, 2000.
- 'To many programmers, America's laws on software patents are a disaster. So why is Europe preparing to go down the same road?' Wendy M. Grossman reports, New Scientist, September 28, 2002, Pg. 36
- 'Intellectual Property Rights Are Patently Important To Business' The Scotsman ', June 24, 2002, Monday , Pg. 17
- 'In Good Company' The Lawyer', April 23, 2001, Pg. 33
- 'EU -- Proposals For Software Patents', March 2002 Pat World 141(5)
- 'Software And Computer-Related Business-Method Inventions: Must Europe Adopt American Patent Culture?' , CD Freedman , September 2000 IJL&IT 2000 8(285)
- 'Commission proposes rules for inventions using software' http://europa.eu.int/comm/internal_market/en/indprop/comp/02-277.htm
- The Proposed EU Software Patent Directive Are software patents about
- Patents: Commission proposes rules for inventions using software: europa.eu.int/comm/internal_market/ en/indprop/comp/02-277.htm
- Directive Of The European Parliament And Of The Council On The Patentability Of Computer-Implemented Inventions, Brussels, 20.02.2002, COM(2002) 92 final , 2002/0047 (COD)
- Official Journal of the European Communities, Opinion of the Economic and Social Committee on 'Promoting innovation through patents:Green Paper on the Community patent and the patent system in Europe' (98/C 129/03)
- Resolution on the Commission Green Paper on the Community patent and the patent system in Europe: Promoting innovation through patents (COM(97)0314 - C4-0342/97), Official Journal of the European Communities, A4-0384/98
Extract 1 : Introduction & Differences
Extract 2 : A shift from non-Patentability? & A state of flux
Extract 3 : Mood for change & EPO Proposal
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