Saturday, October 01, 2005

No Patents on Computer Programs in Europe - A Judge's Opinion

In the England and Wales High Court (Patents Court) Decisions, we have found a readable opinion by Deputy Judge Mr Peter Prescott (sitting as a Deputy Judge) IN THe MATTER OF Patent Applications GB 0226884.3 and 0419317.3 by CFPH L.L.C., [2005] EWHC 1589 (Pat) in which Judge Prescott writes about "what is an invention" in the EU and about the prohibition of software patents in Article 52 of the European Patent Convention (EPC). We have omitted the footnotes and our excerpted text of the opinion is as follows:

"The reason why computer programs, as such, are not allowed to be patented is quite different. Although it is hotly disputed now by some special interest groups, the truth is, or ought to be, well known. It is because at the time the EPC was under consideration it was felt in the computer industry that such patents were not really needed, were too cumbersome (it was felt that searching the prior art would be a big problem), and would do more harm than good. I shall not go into details here but it is worth noting that the software industry in America developed at an astonishing pace when no patent protection was available. Copyright law protects computer programs against copying. A patent on a computer program would stop others from using it even though there had been no copying at all. So there would have to be infringement searches. Furthermore you cannot have a sensible patent system unless there exists a proper body of prior art that can be searched. Not only are most computer programs supplied in binary form – unintelligible to humans – but most of the time it is actually illegal to convert them into human-readable form. A patent system where it is illegal to search most of the prior art is something of an absurdity.
Recently, the scope of this exclusion has been under re-consideration by the European Union. The Commission wanted to harmonise the law by defining the line between inventions that are properly patentable and mere computer programs. Although not strictly relevant to what I have to decide, I must admit I watched developments with some anxiety. Had the proposal succeeded it would have entrenched a test involving 'technical contribution' and 'technical features' that I suspect is too vague to be workable at the margin. On 6 July 2005 the proposed directive was defeated in the European Parliament and it will not be re-introduced."

Prescott has an equally cogent statement on the exclusion of patents for business methods:

"Now let us consider business methods. What is the policy reason that lies behind the exclusion of those? It is because, historically, patents for business methods were never granted yet business innovation went on very well without the benefit of that protection and without the red tape. Businessmen have been every bit as inventive as engineers. It was probably business administrators (and not poets or priests) who made the greatest "invention" of all time: phonetic writing. Consider as further examples: the invention of money; of double-entry bookkeeping; of negotiable bills of exchange; of joint-stock companies; of insurance policies; of clearance banking; of business name franchising; of the supermarket; and so on. None of these needed patent protection to get started. A patent system is always a burden on trade, commerce and industry: if only because of the "red tape" effect. The only question is whether the benefits outweigh the burdens. That has to be demonstrated by those who assert it is so, and in any case the decision is for the legislature. In this country and in Europe the legislature has not yet been persuaded."

Everyone interested in intellectual property law should read this beautifully written decision.

Via (hat tip).
See also European Patent Convention (EPC)
nipc IP/it Update (nipcLaw Blog) - at that site Oracle, Software Patents Revisited

Crossposted to EUPundit.

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