Clarifications

(from https://consultation.ffii.org/Clarifications)


FFII requests in order to clarify non-patentability of software

The legal principles needed to exclude software and business methods from patentability are quite clear. The FFII has attempted to summarise them as “Ten Core Clarifications”.

The 10CC were drafted as core amendments to the failed EU Softwarepatent Directive proposal.

These principles were in June/July 2005 confirmed by political majority of the European Parliament. They were supported by four political groups (PES, Greens, GUE/NGL, IND/DEM), and substantial parts also by three other other political groups (EPP/ED, ALDE, UEN). The European Parliament clarification on software patentability should be included in any proposal introducing the Community Patent (Articles of the Software Patent Directive (11979/1/2004 - C6-0058/2005 - 2002/0047(COD)) and numbers of the amendments in brackets (P6_AMA(2005)0207)).

The aim is now to defend the substantive provisions of Article 52 of the European Patent Convention against abusive case law interpretation ("as such" tricks, weakening of technical requirement e.g "further technical effects"-teaching) and any direct or indirect codification thereof.

1. Definition of "Computer-Aided Invention"

A “Computer-aided invention”, also inappropriately called “computer-implemented invention”, is an invention in the sense of patent law the performance of which involves the use of a programmable apparatus.

2. Definition of "computer program"

A “computer” is a realisation of an abstract machine consisting of entities such as input/output, processor, memory, storage space and interfaces for information exchange with external systems and human users. “Data processing” is calculation with abstract component entities of computers. A “computer program” is a data processing solution which can, when described in a predefined language, be executed by computers.

3. Objects of Product and Process Claims

A computer-aided invention may be claimed as a product, that is as a programmed apparatus, or as a process carried out by such an apparatus.

4. Exclusion of Program Claims

A patent claim to a computer program, either on its own or on a carrier, shall not be allowed.

5. Freedom of Publication

The creation, publication or distribution of information can never constitute a patent infringment.

6. Negative Definition of "Field of Technology"

While products and processes in all fields of technology are patentable inventions regardless of whether or not they involve computer programs, the subject matter and activities within the computer programs are not patentable on their own.

7. Positive Definition of "Technical" and "Field of Technology"

“Technology” is applied natural science. “Technical” means “belonging to a field of technology”.

8. Negative Definition of "Contribution"

A computer-aided invention shall not be regarded as making a technical contribution merely because it uses better algorithms so as to reduce the need for processing time, storage space or other resources within the data processing system. Accordingly, innovations involving computer programs which do not solve any problems of applied natural science beyond the improvement of data processing efficiency shall not be patentable. Computer-aided inventions are not considered to make a technical contribution merely because they make better use of data processing resources such as processing time or storage space.

9. Positive Definition of "Contribution" and "Invention"

An “invention” is a contribution to the state of the art in a field of technology. The contribution is the set of features by which the scope of the patent claim as a whole is considered to differ from the state of the art. The contribution must be technical, that is, comprise technical features and belong to a field of technology. Without a technical contribution, there is no patentable subject-matter and no invention. The technical contribution must fulfil the conditions for patentability. In particular, it must be novel and not obvious to a person skilled in the art.

10. Freedom of Interoperation

Wherever the use of a patented technique is necessary in order to ensure interoperability between two different data processing systems, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available, such use is not considered to be a patent infringement, nor is the development, testing, making, offering for sale or licence, or importation of programs making such use of a patented technique to be considered a patent infringement.

See also: 10CC Presentation by Hartmut Pilch (Jun 2005 CCIA Conf)

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