Software patents under TRIPs Agreement

Template:Use dmy dates Template:Computer programs, software and patent law The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.

Article 27 of TRIPS

Article 27 paragraph 1 of TRIPS provides for that: Template:Quote

The only allowable exceptions to this provision are laid down in paragraphs 2 and 3 of the same Article 27, and neither software nor computer programs are mentioned therein. The following elements may be excluded from patentability by WTO members under TRIPs:

• (...) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.(paragraph 2)
• diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (paragraph 3(a)) and
• plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. (...) (paragraph 3(b)).

However, despite not being mentioned as an exception in paragraphs 2 and 3 of Article 27 TRIPs, 'pure software' is not considered an invention under European law.<ref name=Hartnack>Software Patents in Europe, Chairman's Opening Remarks, Speaker: Paul Hartnack, Comptroller General, The Patent Office, Last updated 6 December 2000 (Archive.org).</ref> The decision of the contracting states of the TRIPS Agreement, i.e. the WTO member states, was that patents should be granted in all fields of technology, without discrimination (Art. 27(1) TRIPS<ref>http://www.wto.org/english/docs_e/legal_e/27-trips.pdf TRIPS Agreement</ref>). However, according to Paul Hartnack, former Comptroller-General of the UK Patent Office, it is arguable whether pure software is a technology, or is, in many cases, capable of industrial application. He argues that its acceptance as such under European jurisdiction would be a political matter based on economic interest.<ref name=Hartnack/>

Art. 31(1) of the Vienna Convention on the Law of Treaties requires "ordinary meaning to be given to the terms of the treaty". The same provision requires interpretation within the light of the object and purpose of the treaty.<ref>http://legal.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf Vienna Convention on the Law of Treaties</ref>

There have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the domains of, for example, computer-implemented business methods, computer science and software information technology remains uncertain, since the TRIPS agreement is subject to interpretation,<ref>John Moetteli, The Patentability of Software in the U.S. and Europe, presented at St. Gallen, Switzerland, 28 October 2005, p.3 (pdf), retrieved on 3 July 2006</ref> like all legal texts.

Relationship with copyright protection

Article 10 paragraph 1 of TRIPS provides that a computer program is a type of work which is eligible for protection under copyright law: Template:Quote

This argument was used by some adversaries<ref>Template:Citation
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Template:Citation</ref> of software patents to contend that software patents would not be allowed by the TRIPS agreement.<ref>Template:Citation
Template:Citation</ref> TRIPS textbooks see no conflict, for instance Correa & Yusuf<ref>Template:Citation</ref> notes that software patents complement copyright because copyright does not protect underlying ideas.

See also

• Aerotel v Telco and Macrossan's Application
• Proposed EU Directive on the patentability of computer-implemented inventions
• Idea-expression divide

External links

• WTO web site
  • Official text of the TRIPS Agreement
  • Disputes concerning the TRIPS Agreement
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