Software patents under TRIPs Agreement

Computer programs, software and patent law
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Business methods

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 states that:

(...) patents 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. (...) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

The only acceptable exceptions to this provision are laid down in the paragraphs 2 and 3 of the same Article 27. 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 as Paul Hartnack, then Comptroller-General of the UK Patent Office, commented in 1998:

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 fields 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?

The rules for in interpretation of international treaties, do not allow specific European perceptions on terminology to be considered for TRIPS interpretation: 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, which leaves little room for "sound economic reasons" for legal interpretation purposes. The decision of the contracting states of the TRIPS Agreement was that patents should be granted in all fields of technology, without discrimination (Art. 27(1) TRIPS).

To date, the interpretation of Article 27 has been tested in the 2002 dispute between the U.S. and Argentina over patent protection for pharmaceuticals (which was solved by mutual agreement) and the 2000 panel report also on patent protection for pharmaceuticals, in a case brought by the EU against Canada.

However, 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, 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:

Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

This argument was used by some adversaries of software patents to contend that software patents would not be allowed by the TRIPS agreement. TRIPS textbooks see no conflict, for instance Correa & Yusuf 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