TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement between all the member nations of the World Trade Organization. TRIPS requires that patents exist in certain domains and that they have a duration of 20 years.
Contents
TRIPS does not require software patents
Article 27
People lobbying for software patents have argued that TRIPS dictates that patents should be available for any technology, and therefore, a law banning software patents would be in breach of TRIPS. According to Article 27(1):
[P]atents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
However, TRIPS does not say that writing software is a "field of technology". In fact, that term is not defined at all, so every legislature is free to decide which activities are and which aren't part of a field of technology.
Some software developers call their work "technical" (in the sense of "complex"), but interpreting TRIPS requires us to look at what "technical" means in a legal context. In a legal context, software can be categorised as a work of authorship instead of a work of technicians. This view is supported by TRIPS article 10 which calls software a "literary work".
It is also confirmed by the European Patent Convention, which was written to comply with TRIPS and which contains an exclusion for "programs for computers". (Recent interpretations from patent owners have pushed to narrow this exclusion, but the exclusion is still in the Convention text.)
According to Paul Hartnack, former Comptroller-General of the UKIPO, it is arguable whether pure software is a technology, or is, in many cases, capable of industrial application:[1]
Some have argued that the TRIPS agreement requires us to grant patents for software because it says "patents shall be available for any inventions.....in all field of technology, provided they are.....capable of industrial application". However, it depends on how you interpret these words.
Is a piece of pure software an invention? European law says it isn’t. Is pure software technology? Many would say no. Is it capable of "industrial" application? Again, for much software many would say no.
TRIPS is an argument for wider protection for software. But the decision to do so should be based on sound economic reasons. Would it be in the interests of European industry, and European consumers, to take this step?
Article 10: Software is a literary work
According to Article 10:
Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
Literary writing is not a field of technology, so this sentence implies that the authors of TRIPS did not intend software to be counted as a field of technology.
Treatment of TRIPS by courts
USA
When the US Supreme Court was considering the Bilski case and the patentability of software and business method patents, their decision made no mention at all of TRIPS (or any other treaty).[2]
Germany
The Germany Federal Patent Court, in 2000, explicitly rejected the idea that TRIPS affected software patentability.
FFII provides a translation[3] of the ruling:[4]
The Treaty on Trade Related Aspects of Intellectual Property Rights (TRIPs) does not entail any different judgment of patentability. Independently of the question as to in what form - directly or indirectly - the TRIPs treaty is applicable here, the application of Art 27 TRIPs would not lead to any extension of patentability here. The wording, according to which patents shall be available for inventions in all fields of technology, merely confirms the dominating view of german patent jurisprudence, according to which the concept of technology (Technik) constitutes the only usable criterion for delimiting inventions against other kinds of intellectual achievements, and therefore technicity is a precondition for patentability (the "Logikverifikation" decision of the Federal Court of Justice (BGH) sees Art 27 TRIPs as "posterior confirmation" of this jurisprudence). The exclusion provision of Art 52 (2) and (3) EPC can also not be construed to be in conflict with Art 27 TRIPs, since it is based on the notion of lacking technical character of the excluded items.
Canada
From Amazon ruling by Canadian Federal Court on 14 October 2010:
The Commissioner’s Reasons refer to the “technological” nature of all five categories of invention, the requirement in the Patent Rules that a description refer to a “technical problem” and the language in the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS).
The judge simply notes an argument from the Commissioner but doesn't mention that this deserves any consideration and doesn't mention it in his own reasoning.
Treatment of TRIPS by legislators
EU
In September 2003, in the "frist reading" stage of the EU software patents directive, the European Parliament voted amendments which clearly excluded software from patentability. They clearly didn't see any problem with this position and TRIPS.
Interoperability exceptions
Article 30
Full text:
Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 40.2
Article 40.2 says:
Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.
Since software patents have severe adverse effects on competition and markets, so there is clearly grounds for adding conditions to the use of patents in relation to software, communication, standards, compatibility, etc. This approach was suggested, but also disputed, in Japan.
Non-commercial exception? In anti-competition cases?
The following could be useful since certain models of software development and distribution rely mostly or exclusively on doing so non-commercially.
Article 31:
Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:
[...]
(b) [...] or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;
[...]
A footnote clarifies that "other use" (mentioned in the first line) "refers to use other than that allowed under Article 30."
The text then gives a list of conditions which apply, but says:
(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive.
Related pages on ESP Wiki
References
- ↑ Hartnack Paul, Software Patents in Europe - Chairman's Opening Remarks[archived], patent.gov.uk, 2000-12-06.
- ↑ http://www.supremecourt.gov/opinions/09pdf/08-964.pdf
- ↑ http://eupat.ffii.org/analysis/trips/index.en.html
- ↑ German original: German court ruling "BPatG Fehlersuche 2000-07-28" (English translations[?]: Google, bing translator)
External links
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The "External links" section should only contain links to related websites, not articles. You can help us digest the information contained in these links and include it in the body of the article with appropriate citations.
- The text of TRIPS on wto.org (pdf)
- Wikipedia: Software patents under TRIPs Agreement
- Avoiding the Software Patent Problem: An Alternative Fix For TRIPS Junkies, by Anton Hughes
- TRIPS and Software Patents in Japan, good general review of TRIPS from a legal perspective
- CodeLiberty.org (available via the webarchive service) was first to raise questions of TRIPS software patent incompatibility in 2004 during the EU Softpat Directive.
- The TRIPs Treaty and Software Patents, FFII
- YouTube video of Joseph Stiglitz on TRIPS (see also: Joseph Stiglitz on software patents, and boycottnovell.com's report on this video)
