[bionet.software] Patent treaty update

JRAMON@uamed.uam.es (04/06/91)
Date: Sat, 30 Mar 91 18:31:25 -0500
From: gnulists@AI.MIT.EDU
Subject: Patent treaty update
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  [Please repost this in any other lists, local or netwide, where
   it would be relevant and helpful.
  ]

Here is the best scoop I have so far on the patent treaty.  One of the
problems I thought the treaty had seems to be gone in the authoratative
draft: it does not require reducing the criterion of unobviousness.

But it still seems to interfer with doing anything about software patents,
so I've started talking with congressional staff and will try eventually
to meet with the legislators themselves.

Subject: UN Treaty Threatens to Mandate Software Patents

WIPO (World Intellectual Properly Organization), a part of the United
Nations, is working on a treaty to "harmonize US and European patent
law".  Proposed articles for the treaty would require software patents
to continue to exist.  (This conclusion is based on WIPO publication
PLT/DC/3, December 21, 1990, which contains the full text proposed for
the treaty, and on conversations with patent lawyers.)

Article 10 (alternative B) of the proposed draft would require that
there be patents in all fields of technology--which inevitably
includes software.  Alternative A for Article 10 would permit each
country to specify fields of technology that are excluded from
patents; this way, individual countries would retain the option of
refusing to issue patents on techniques of programming or features of
programs.  Thus, we should urge support for alternative A.

The Patent and Trademark Office suggests that there is a way to get
around this limitation: it would still be possible to define the
meaning of "invention" to exclude software.  It is true that some
countries can and do rule that computer programs are not inventions.

However, patenting individual programs is not the issue; the software
patents that cause today's problem cover software-related ideas, not
individual programs.  Redefining "invention" to exclude such ideas
is likely to be rejected by legislators who (understandably) do not
wish to so distort the meaning of the word.  To make an analogy,
right turn on red is a good policy, but redefining "green" to
include red under certain circumstances is not a desirable way to
institute it.  We don't want to be reduced to advocating such a
method as our only recourse.

Many patents that restrict software development are not written so as
to apply specifically to software.  Rather, they cover particular
techniques or features whether implemented by hardware or software.
Therefore, rejecting software-specific patent applications would solve
only part of the problem patents pose for software development.

Solving the whole problem requires a different sort of change, such as
a policy that software implementations using general-purpose hardware
do not infringe patents.  Article 19 of the treaty would rule out such
a policy, if alternative B or C is chosen.  We should urge support of
alternative A for Article 19 (to delete the article).

Since the US already has the problem of patents in software, these
articles would not directly change the situation here.  It does not
follow that the treaty is unimportant for software developers in the
US.  We need to solve the problem of software patents, and this means
we need to keep open our country's options to make the needed changes.

In addition, Article 22 (alternative B) requires that patents last at
least 20 years.  For the US, this is an extension of the term of a
patent.  In an age when the rapid advance of technology makes most
technology obsolete much more quickly than in the past, it would make
more sense (in most fields) to shorten the term.  (Many software
developers advocate an extremely short span for software patents, such
as three years.)  For this reason, alternative B should be rejected.

For all of these reasons, it is vital to prevent the adoption of the
harmful alternatives when the treaty is finalized---or to prevent
ratification in the US and in other countries.

The treaty language is supposed to be finalized at a diplomatic
conference in June.  The principal ways Americans can influence the
decision are via the US administration and via the US Senate.  (If the
Senate makes it clear they won't ratify the treaty with certain
wording, that might convince the negotiators to change their plans.)

To express your views to the administration, write to:

    Michael Kirk
    Box 4
    US Patent and Trademark Office
    Washington, DC 20231

It is also useful to write letters to your senators; but letters are
probably not enough.  You probably need to get together with other
programmers in your state, and then together arrange to meet with your
senators' staff to discuss the problem.  You need to communicate an
understanding of a part of the world about which they know little.
The background by which you can see the effects patents have in the
software field is what they lack.  If they don't learn this, they
won't see the plausibility of the conclusions we draw.  It is much
easier to communicate this in a discussion than in a letter.

When you communicate, please keep in mind the distinction between a
patent on a computer program and a patent that affects software
development.  (If you don't, the Patent and Trademark Office will
gleefully inform the Senator that this shows that you don't understand
the existing system, and will suggest that your belief that any
problem exists is entirely due to your misunderstanding.)

In fact, an individual computer program is rarely or never patented; a
patent so specific would not be worth the cost of obtaining it, since
a program designed differently would certainly not be covered.  The
software patents that cause trouble today in the US cover software
techniques or features, such as using exclusive-or to modify a display
screen, or having multiple subwindows scroll together.  Rules against
patenting programs do not prevent patents like these.

Excerpts from the treaty:

Article 10, Alternative B:

Patent protection shall be available for inventions, whether they
concern products or processes, in all fields of technology.


Article 10, Alternative A:

(1) Patent protection shall be available for inventions in all fields
of technology which are new, which involve and inventive step, and
which are industrially applicable, except for:



(2) Contracting States may, on grounds of public interest, national
security, public health, nutrition, national development and social
security, exclude from patent protection, either in respect of
products or processes for the manufacture of those products, certain
fields of technology, by national law.




Article 19, Alternative A:

Note: no article on the rights conferred by the patent.
[rms: That is to say, the treaty would not address the issue.]

Article 19, Alternative B:

(1) [Products]  Where the subject matter of the patent concerns a
product, the owner of the patent shall have the right to prevent third
parties from performing, without his authorization, at least the
following acts:

(i) the making of the product,

(ii) the offering or putting on the market of the product, the using
of the product, or the importing or stocking ...

(2) [Processes]  Where the subject matter of the patent concerns a
process, the owner of the patent shall have the right to prevent third
parties from performing, without his authorization, at least the
following acts:

(i) the use of the process,

(ii) in respect of any product directly resulting from the use of the
process, any of the acts referred to in paragraph (1)(ii), even when a
patent cannot be obtained for the said product.

(3) [Exceptions to Paragraphs (1) and (2)]  (a) not withstanding
paragraphs (1) and (2), any Contracting Party may provide that the
owner of a patent has no right to prevent third parties from
performing, without his authorization, the acts referred to in
paragraphs (1) and (2) in the following circumstances:

(i) where the act concerns a product which has been put on the market
by the owner of the patent, or with his express consent, ...

(ii) where the act is done privately and on a non-commercial scale or
for a non-commercial purpose, provided that it does not significantly
prejudice the economic interests of the owner of the patent;

(iii) where the act consists of making or using exclusively for the
purpose of experiments that relate to the subject matter of the
patented invention [or for the purpose of seeking regulatory approval
for marketing];

(iv) where the act consists of the preparation for individual cases,
in a pharmacy or by a medical doctor, of a medicine in accordance with
a medical prescription or acts concerning the medicine so prepared.

(b) The provisions of paragraphs (1) and (2) shall not be interpreted
as affecting the freedom that Contracting Parties have under the Paris
Convention ... to allow, under certain circumstances, the performance of
acts without the authorization of the owner of the patent.
[rms: Those freedoms don't make provision for excluding software from
patent coverage.  Thus, alternative B as a whole does not allow such
an exception.]

(4) [Omitted here.  This concerns contributory infringement]

Article 19, Alternative C, differs in certain details.

(1)(i) the making of the product,

(ii) the offering for sale of the product, and the using of the product.

(2) [Processes]  Where the subject matter of the patent concerns a
process, the owner of the patent shall have the right to prevent third
parties from performing, without his authorization, the using of the
process.

(3)(i) [irrelevant minor differences]

(ii) where the act is done privately and on a non-commercial scale,

(iii) where the act consists of making or using for exclusively
experimental, academic or scientific research purposes;

(iv) [same as Alternative B]

(b) [same as Alternative B]

[rms: Alternative C likewise does not permit an exemption for
software.]