It would be a significant victory if patent law contained a general exclusion, preventing patent holders from enforcing patents against people who are using the patented innovation for the purpose of interoperability or compatibility.
This would not be a restriction on granting patents - it would be a defence for anyone accused of violating a patent. As such, there's no question of problems with TRIPS obligations.
Below is a text suggested for the EU software patents directive.
(NOTE: I can't remember if this is the best text circulated, or if there are problems, but it's certainly not the worst text.)
Member States shall ensure that, wherever the use of a patented technique is necessary in order to ensure interoperability between two different computer systems or networks, 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.
The dangers of exceptions and "defences"
The text would have to be written carefully so as not to imply that software patents exist. This danger was confirmed in the Bilski v. Kappos ruling in the USA, 2010. In that decision, where the legislation could be interpreted to support or exclude business methods, Justice Kennedy wrote that because the legislation in the USA included a defence (§273(b)(1)) for anyone accused of infringing a business method patent, this meant that the legislature must have intended business method to be patentable:
Under §273(b)(1), if a patent-holder claims infringement based on “a method in [a] patent,” the alleged infringer can assert a defense of prior use. By allowing this defense, the statute itself acknowledges that there may be business method patents. Section 273 thus clari fies the understanding that a business method is simply one kind of “method” that is, at least in some circumstances, eligible for patent ing under §101. A contrary conclusion would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous.
Related pages on ESP Wiki
- Competition law defence
- Harm to standards and compatibility
- Supporting partial solutions
- TRIPS, Article 40.2 provides a legal base for interoperability exceptions
- IBM and TurboHercules, 2010
- Can We Legislate Past the H.264 Debate?, Slashdot discussion, 2010