Law

European Patent Law is defined by the European Patent Convention (EPC, also called Munich Convention, 20 member states) of 1973.

The EPC is independent of the European Community Treaty (ECT of 1957, also called Rome Treaty, 15 member states, later extended by the Maastricht Treaty).

The EPC's article 52 states that patents are granted only for inventions. It does not define the concept of invention, but from the tradition of patent law it is understood that this refers to the concept of technical invention, which has been described as teaching of how to use controllable physical forces to immediately achieve a causally overseeable success (definition of the German Federal Court BGH). Instead of a defining formula, the EPC gives in art 52(2) a list of negative examples: items which are not inventions. These include mathematical methods, intellectual methods, ways of doing business, ways of presenting information and programs for computers. Art 52(3) explains that these non-inventions are not patentable as such but may nevertheless be part of patentable inventions. Yet, starting in 1986, the European Patent Office (EPO) has granted more than 30,000 patents on a "method or device which include programmes" where such method or device is actually a generic computer and the only innovation consists in a rule of organisation or calculation (programme for computers). Since 1998, the EPO has even been granting patent claims of the form

"computer program product, characterised by ... ",
"computer program, characterised by ..." and
"text structure, characterised by ..."

This practise is based solely on decisions of Technical Boards of Appeal, i.e. lower administrative courts which are part of the EPO. They have not undergone any review by either the Enlarged Board of Appeal, which is, according to EPC art 22 responsible for important legal questions, nor the EPO's administrative council, through which the governments are supposed to exercise political control.
According to Law schools and Law textbooks, the EPO has circumvented and even abused the Law and the Munich Convention should be understood as prohibiting patents on software. The patents granted by the EPO may eventually have no value in case of dispute. Some experts claim that the TRIPS (WTO) agreements force Europe to grant patents on software and to remove the exception on computer programs. This argument is clearly wrong according to reputable patent experts themselves. On the other hand, granting patents on business methods or Internet patents, as the USA is doing, may be incompatible with the 1947 GATT treaty. And software patents raise many inconstencies with the Rome Treaty.

FFII: European Patent Jurisprudence on a Slippery Slope: The Price to Pay for Dismantling the Concept of Technical Invention

A collection of links to legal literature on this subject

http://swpat.ffii.org/stidi/korcu

Chairman's Open Remarks at the London Conference. Paul Hartnack, Comptroller General, The Patent Office

According, to Paul Hartnack, "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?"

http://www.patent.gov.uk/softpat/en/1000.html

Droit de l'Informatique. Lamy

Recent editions of this textbook explain that, according to the Munich Convention, pure computer programme can not be patented but that the EPO has developed various tricks to circumvent the Law. The patents resulting from these tricks may not be valid in case of dispute. Also, EPO rules are largely inconsistent, making a distinction between a relational database (technical) and a document database (non technical). A must read of humour, although in French.

http://www.lamy.fr/store/product.asp?id=48&nav=affaires

Software Patent Inconsistencies with the Rome Treaty and European Competition Law

This short article introduces potential contradictions of software patents with the Rome Treaty and European Competition Law. It discusses in particular contradictions between software patents and the interoperability principle of the 1991 directive on software..

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WTO Challenge to Software Patents - John Bohn

This short article introduces provisions of the GATT which may be inconsistent with Internet patents.

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