Re: Softwarepatente abgelehnt
> Hier der Aenderungsantrag Nr. 8, der von praktisch allen Fraktionen
> eingereicht wurde und Schaetzungen zufolge knapp 500 (von erforderlichen
> 367) Stimmen auf seiner Seite hatte -- man erkennt hieran sehr wohl, warum
> die Patentlobby zuletzt energisch die Zurueckweisung der Richtlinie
> als ganzer betrieb.
Entschuldigung, bitte das folgende ignorieren, mir ist ein Fehler
unterlaufen, hier ist die richtige Version aus den parteiuebergreifenden
21 Aenderungsantraegen:
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Council:
A computer-implemented invention shall not be regarded as making a
technical contribution merely because it involves the use of a
computer, network or other programmable apparatus. Accordingly,
inventions involving computer programs, whether expressed as source
code, as object code or in any other form, which implement business,
mathematical or other methods and do not produce any technical effects
beyond the normal physical interactions between a program and the
computer, network or other programmable apparatus in which it is run
shall not be patentable.
Rocard-Buzek-Duff Amendment 8:
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.
Justification
The Council's version is tautological and implies that business
methods are patentable inventions when they "produce a further
technical effect", i.e. when they fulfill a condition which the
European Patent Office, which invented this rhetoric in 1998, has
admitted to be meaningless.
Since computers are well known, the presence of a computer can of
course not by itself constitute a technical contribution. The question
is whether the presence of a computer in combination with an improved
algorithm can constitute a technical contribution. By failing to pose
this question, the Council seems to imply a positive answer.
The distinction between "business method" and "invention which
implements a business method" is a common technique for circumventing
Art 52 EPC.
The question of how the "invention" is expressed has never been
relevant, nor has the distinction between more or less human-readable
descriptions of programs. This subsentence serves no regulatory
purpose, apart from insinuating that Art 52(2)c EPC should be
interpreted in a way that makes it meaningless.
The sentence "inventions involving ... business methods ..., which
implement ..., shall not be patentable." is syntactically ambiguous
but probably means that "business method inventions" are patentable,
if they "produce a further technical effect".
The term "normal physical interactions between a program and a
computer" means about as much as "normal physical interactions between
a recipe and a cook".
In 2000, EPO itself has criticised this wording and explained that it
was merely a wordplay temporarily used in the IBM decision of 1998 in
order to circumvent the European Patent Convention, in anticipation of
a change of law that would render it unnecessary:
http://www.european-patent-office.org/tws/appendix6.pdf:
There is no need to consider the concept of "further technical effect"
in examination, and it is preferred not to do so for the following
reasons: firstly, it is confusing to both examiners and applicants;
secondly, the only apparent reason for distinguishing "technical
effect" from "further technical effect" in the decision was because of
the presence of "programs for computers" in the list of exclusions
under Article 52(2) EPC. If, as is to be anticipated, this element is
dropped from the list by the Diplomatic Conference, there will no
longer be any basis for such a distinction. It is to be inferred that
the Board of Appeals would have preferred to be able to say that no
computer-implemented invention is excluded from patentability by the
provisions of Articles 52(2) and (3) EPC.
This amendment fixes the errors while trying to stay as close to the
original wording as possible.
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