Talk:Software patents under TRIPs Agreement/Archives/2013

Removed external link of doubtful credibility

I removed the following link from the External link section: [1] (see edit [2]). The credibility of the linked article is doubtful and somewhat vanity (presumably inserted by his author - compare names). Two reasons:

1. The article has no date.
2. And since it seems it was written in 2005, it contains a gross factual mistake at the very beginning : "The European Patent Convention is in force in all EU Member States."

As of today, the European Patent Convention is not in force in Malta, which is member of the EU. I think a wikipedia article should not point the reader towards erroneous sources of information. The purpose of an encyclopedia is to point towards reference links, not just random external articles. --Edcolins 14:09, July 19, 2005 (UTC)

Thanks for catching the factual mistake you mentioned and removing that link. I confirm that in fact I inserted this link to my own article. Another reason including this link might be doubtful lies in the fact that the article was written on a request by FFII, which is one of the parties in this debate. Thanks again.

--Karl-Friedrich Lenz

misleading summary

Please excuse my misleading formulation, english is not my native language. But maybe you can help me to make the following clear:

TRIPS Art. 13 makes provisions to the exception of rights of authors of artistic works like computer programs.

TRIPS Art. 30 makes provisions to the exception of rights of inventors.

Authors of computer programs are third parties to patent owners with legitimate interests.

TRIPS Art. 30 declares that these interests have to be taken into account.

Member states (with IPO and courts) have to find a reasonable balance between both legitimate interests.

Correct me if I am wrong. Swen 13:51, 20 May 2008 (UTC)

I don't think the misleading formulation has anything to do with your knoweldge of English, but rather the impression you were attempting to give.

Art 30 says nothing about computer programmers and its main thrust is to do with limiting the exceptions on patent rights. The mention of third parties is only at the end and at first glance is an afterthought or at least a minor part of the Article. Summarising Art 30 in the article by saying that it's to do with protecting the interests of computer programmers, or any third party, is placing undue weight on a seemingly minor aspect of the Art. Unless there is a reliable source saying that this Art is primarily to do with protecting the rights of computer programmers or that that is one of its major effects, then it is Original Research for us to make such a statement in the article. Saying that Art 30 means that "Member states (with IPO and courts) have to find a reasonable balance between both legitimate interests" would definitely be OR without a source to back it up. GDallimore (Talk) 14:07, 20 May 2008 (UTC)

Ok, I see your problem. My problem remains that the wording of Art. 30 is for me no Original Research. But you are right, I made a systematic connection between two articles of TRIPS (requirement of internal consistency). In the german BGH decision "Dispositionsprogramm" last paragraph from 1977 there is such a systematic separation between patent right and other intellectual property (requirement of external consistency). But that was before TRIPS. If I look at the TRIPS explanations I find the Basic principle of "balanced protection" with the second paragraph: "The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says." I don´t think that making this connection between Art.30 and the explanation from the original source is OR. If so, ok lets write an article. Swen 15:35, 20 May 2008 (UTC) —Preceding unsigned comment added by Swen (talk • contribs)

Maybe you have a look at Westkamp page 23ff with his explanation about TRIPS and the patent/copyright dichotomy: "There is a certain case for this, in that the criteria for IP allocation may be regarded as definite as long as protection is sought for technology, articulating the overriding rationale of technology protection as broad as possible. This restricts opportunities to grant quasi-IP rights in endeavours either enumerated in TRIPs or classifiable as copyright or patent. But yet again, software protection demonstrates the pitfalls of such narrow view since it is based upon pragmatic rather than ontological considerations." --Swen 10:00, 28 May 2008 (UTC)

"remove Art 30 reference - I've just realised that this has nothing to do with the relationship with copyright protection at all."

Sorry about that. Swen 17:54, 20 May 2008 (UTC)

Maybe you consider Westkamp page 29f under "Legitimate Aims and Proportionate Measures: Some Possible Starting Points": "Perhaps the most promising solution is to include provisions in TRIPs which set forth a balancing test applicable to all forms of deviation from its acquis." Or see Yu page 948: "Should we challenge students to think critically about the nature of those rights and to evaluate alternative models to promote creativity and innovation (including free and open source software development, open access formats, and other open and collaborative models)? Is the international intellectual property debate more about the fundamental question of the system’s existence than about the balance of the system?" --Swen 10:00, 28 May 2008 (UTC)

Recent addition

The text below was recently added to the article:

Still, the fact that so far no formal objections were raised that European countries only grant patents for (sufficiently) technical inventions implies that factually this limitation is accepted, e.g. by the United States. Nonetheless, the purpose of art. 27(1) TRIPS is not to limit, but to extend the realm of patentable subject matter. At the time it was agreed, in many countries the patentability of medicines was still limited, and TRIPS intended to extend patentability into all fields of technology.

TRIPS only requires patents to be granted for inventions, without defining this concept. The rules for treaty interpretation, as laid down in the Vienna Convention on the Law of Treaties (art. 31(1)), do not allow the application of e.g. a specific European definition of the invention concept in the TRIPS context. The American perception of the invention concept is different. While e.g. European patent law explictly says that scientific discoveries as such are no inventions in art. 52(2a+3) EPC, the American patent statute in Section 100(a) says exactly the opposite. Still, there is some agreement worldwide that overly abstract ideas are not patent-eligible, which would allow TRIPS-compliant exclusion.

Allegedly, software patents suffer from abstractness. But, in an American case about an automatic heart rhythm failure detection device, initially the patent application was rejected, because the invention was basically merely a (software) algorithm, which as deemed to be "abstract". But the court decided, that saving lives, the purpose of the invention, definitely was not an "abstract" purpose, and allowed the patent.

Patents for genuinly abstract ideas would potentially give an excessively wide protection for a limited achievement. Such patents would amount to a "hunting licence", as an American court once noted. Some software patents are indeed limited to mere ideas. But they do not satisfy the disclosure requirement (art. 83 EPC, 35 USC § 112): a patent is supposed not just to identify but to solve a problem, "without undue experimentation"

A different perspective

Software copyright both under US and European law only protects the actual code, not the underlying ideas and principles. This does not mean that these ideas and principles must be protected by patent law, but there is no conflict either if they are projected. If software patents would really constitute a duplication, why would one spend a lot of effort, time and money in order to obtain maximum twenty years of patent protection from the moment of grant, while copyright provides free of charge protection until 70 years after the death of the author?

Indeed software patents may limit the exercise of software copyright. But this is nothing special: accumulation is quite common in the law of "intellectual property". E.g. translators can not exercise their (own) copyright if the original author does not allow that, exercising his copyright. Trademarks of sufficient originality can also be protected by copyright. In sum, the existence of software copyright is not a reason to conclude that software patents are against the law. Whatever anti-software activists argue (e.g. FFII, see http://www.ffii.org), scientific literature does not see a conflict.

References

---

I have removed it as it cites no sources and appears to represent significant original research. Perhaps something of this can be salvaged with adequate sourcing. GDallimore (Talk) 09:46, 27 May 2009 (UTC)

I have added some sources, in particular on the legislative history, which is indeed central to the argument and needs a proper source. Any other references missing? I did not quote literal text of statutory provisions because imho that would add little to clarity while jeopardising readability.

Hope you did not reject my contribution because it may not be popular in some circles of people sho object software patents. Actually I fully subscribe to the detrimental effects of (many) software patents, but I do believe that an encyclopeedia should quote the correct legal arguments. The present text imho is not correct, and biased. Rather than flagging the entry as "disputed", I chose a more constructive approach and added some text. If that is not appreciated, next time I won't make the effort. Rbakels (talk) 10:12, 27 May 2009 (UTC)

Hi. I removed the text for the reasons I gave: it is unreferenced and therefore constitutes original research. You've been around Wikipedia for a while, so I assume you know that's not acceptable. On the other hand, I cannot see how the existing text is either wrong or biased since it does little more than quote relevant portions of TRIPs and then say that all this remains untested by courts of law in relation to "software patents". What content are you disputing?

If you have a source that contradicts any of the article or supports what you wish to add, please cite it. However, for the very reason that this is a controversial issue, I am going to be draconian in removing unsourced edits to avoid this article turning into the complete mess that the software patent debate article is in. Thanks. GDallimore (Talk) 10:52, 27 May 2009 (UTC)

Adding some reliable sources will take some time, but many are collected in the G3/08 amicus curiae briefs[3], [4], [5], [6], [7], and [8].

The briefs themself are OR, but many cititions are not. For developing countries I found the following:

Hinsichtlich von Computerprogrammen ist nicht klar, ob sie vom Patentschutz ausgeschlossen sind, da weder die Begriffe patentfähige Erfindungen noch Technik im TRIPS-Übereinkommen definiert worden sind. Dagegen verlangt Art. 10 Abs. 1 TRIPS, Computerprogramme als Werke der Literatur urheberrechtlich zu schützen. Daher ist der Ausschluß von Computerprogrammen von der Patentierung in Art. 4 Abs. 1 lit. c) ÄPatG TRIPS-konform.

— Mandefro Eshete „Patent- und gebrauchsmusterrechtliche Entwicklungen in Äthiopien“ GRUR Int 2000, 512-530

--Swen 11:54, 27 May 2009 (UTC) —Preceding unsigned comment added by Swen (talk • contribs)

Let me put this straight: I get the impression that the article was written by anti-software patent activists (yourself?), and is severely biased. No, I am by no means a proponent of software patents, but I do believe that an encyclopedia must provide correct information, not activist propaganda.

Already the first sentence is questionable (or perhaps the presence of the article by itself). TRIPS is not an important element in the debate on the patentability of software, and virtually totally unrelated to the debate about the technical nature of software.

Basically, the argument of the article is that software may not be considered an invention, so TRIPS would not oblige WTO member states to grant software patents, but it says that the actual legal status is uncertain. In my view, there is much more to say about that:

• Interpretation is not an arbitrary activity (e.g. of judges, who have the authority to interpret), but subject to rules, notably of the Vienna Convention on the Law of Treaties (VCLT) (which has not een signed by the US, but its rules are widely supposed to represent customary law, if not basic logic: agreements do not make sense if parties are allowed to interpreted them at will!)
• The VCLT definitely does not allow the EPC invention concept to be inserted into TRIPS, becaue it is a European-only perception. It basically requires the "normal" meaning of (undefined) concepts to be applied. If the "normal"meaning is not sufficiently clear, the preparatory works (legislative history) may be consulted. That reveals that the purpose of the provision was wide patentability, without discrimination. In the phrase "all fields of technology", the emphasis is on "all", not on "technology" (I know that the clause has been copied into the EPC and given a (very) different meaning - which is also related to the fact that TRIPS primarily addresses national legislators, not citizens).
• After 14 years of TRIPS, I don't think that it is appropriate to say that there is still substantive uncertainty, because

no European country was blamed (e.g. by the US) for the present restrictive European practice on the grant of software and business method patents.

The section about the "relationship with copyright protection" imho is even more dissatisfactory. In its present form, it is just an irrelevant introduction into the software copyright provisions of TRIPS. It looks like the controversial part was removed? I guess so because it ends with a reference to the "three-step test". There are activists who argue that the concurrence of software patent protection is incompliant with software copyright protection because it violates that 3-step test, but this theory is not supported by serious literature, and there are ample counter-examples that show that there is no reason to reject accumulation of rights.' Serious literature actually explains that there is no conflict and not really an accumulation betwee sw patents and sw copyright. See most TRIPS textbooks (I do not have them here).

It seems that we are political opponents, which makes you really unreasonable on my compliance with citation "deontology":

'Re the citations suggested (required?):

• The first "citation needed" is subject to the rule "negativa non sunt probanda": it is impossible to prove that no (formal) objections were raised.
• The "original research?" tag is added to a sentence that literally applies to legal provisions quoted in the very same sentence. I could cite the related provision in full, and then explain why it applies. Which will merely boar the reader. Incidentally, what is wrong with "original research"? I think the citations are required to the extent that the reader is able to verify the text. The application of basic logic also satisfies this need - which is why matimatical articles contains so few footnotes!
• "allow TRIPS compliant exclusion": I could elaborate that arguably abstract subject-matter is not considered patentable over the whole world, so exclusion would be VCLT-compliant.
• "Software suffers from abstractness". I don't think that needs a citations, but I could explain that it is intangible, which is illustrated by the court case cited in the next sentence. In the context, it is not a fact, but a thesis, and I explain why it is actually irrelevant. Therefore it is not even possible to provide citation.
• "limited achievement": this is again basic logic. Do you think it is unclear? Otherwise, I think it is a purpose in itself to be concise.
• Why is it "dubious" to cite the "hunting licence" metaphor?
• Swpatents are mere ideas - I have a (German) citation for that: Sven Kiesewetter-Köbinger, 'Über die Patentprüfung von Datenverarbeitungsanlagen', GRUR 2001, p. 185-193.
• "disclosure requirement": again, a citation would not help: this is basic logic: ideas patents do not disclose solutions.

In "a different perspective":

• "projected" is a typo, I mean: "protected". I think it is a logical corollary of the preceding sentence. Perhaps I should reverse the two halves to the sentence. If one fills a gap, there is obviously no duplication. But there is no reason to fill all gaps (again, a negative argument can not be proven, only be falsified).
• "death of the author?" Why is this sentence tagged with "original research?". Again: this is basic logic. If people prefer something expensive and cumbersome over something that is automatic and free, either they are crazy or the two things are not equivalent (no duplication).
• "swpats may limit the exercise of copyright": why does this need a citation? Perhaps it needs some explanation. Really? Isn't it obvious that someone who writes software (and thus obtains the copyright on that software by law) can not (fully) exploit the copyright if it implements inventions covered by patents which which the programmer does not have a licence.
• "accumulation is common". I could have cited a basic intellectual property law textbook. But I chose to give a few examples in the sentences that follow.
• "trademarks can be protected by copyright": why on earth would this be "original research"? Should I bore the reader with an explanation that one (common) type of trademark is a text, and texts beyond a very basic level of originality are copyright protected by law? Other trademarks are prictures: also copyright protected if only slightly original. Or should I add typical lawyer disclaimer language: like "typically" and "in most jurisdictions"?
• "against the law": why the "original research?" tag here? The sentence starts with "in sum", which indicates that it is a conclusion of the preceding arguments. Again, I could add lawyer language (like "probably"), but doesn't Wikipedia oppose "weasel words"?
• finally: "does not see a conflict": basically, this is again a matter of "negativa non sunt probanda", but I could (again!) quote some TRIPS textbooks.

If you are not simply trying to discourage me, I wonder what is the purpose and "format" of Wikipedia articles. For me, an encyclopedia contains more or less "journalistic" articles. Of course, credibility must be fostered, but imho that requires that only statements are made that in principle could be checked. Another aspect is that (imho again) an encyclopedia is written to educate non-experts, which requires occasional "didactic" simplifications.

Is the objective to produce articles that satisfy the standards of scientific papers? With as many footnotes as possible, just as a "deontological" obligation, even if they do not serve any other purpose at all? It seems that you want to go even one step further, and write an article that can be used as a document in court, with all arguments solidly cast in concrete, without any concern about readability or educational value.

Wikipedia depends on volunteers. Who should be helped, not discouraged by preposterous requirements. Rbakels (talk) 16:18, 27 May 2009 (UTC)

If you're going to throw accusations about political motivations around, I don't see why I should waste my time talking to you.

If you are interested in discussing improvements to the article rather than just questioning people's motives, the first thing you should do is go read WP:Verify and WP:Original research to help understand wikipedia's inclusion requirements. In a nutshell, Wikipedia records conclusions published in third part reliable sources. If it is your own conclusion, even if obviously based on established facts, it is still original research. GDallimore (Talk) 16:32, 27 May 2009 (UTC)

PS, If I did not want the material in the article, I would have just removed it. Instead, because it is the only significant addition anyone has made to this article, I moved it to the talk page so that it could be worked on before adding back into the article. Whatever our political positions (and I am not going to state mine here for professional reasons) we both want to improve the article so are both "on the same side". GDallimore (Talk) 16:46, 27 May 2009 (UTC)

OK, if the rule is that original ideas and conclusions should be avoided, then the entire item is IMNSHO opinion inappropriate. Yes, there are people who link the TRIPS Agreement to the "software patent issue", but afaik that is politics from activists. While there is probably material (on the web or elsewhere) that documents the position of these people, its status among lawyers is questionable. While Wikipedia may not allow statements without documentation, that does not mean that anything that is "documentable" is sufficiently realiable to be quoted in Wikipedia. Unless the Wikipedia editor puts it in a proper perspective, but that may be seen as "original research" again.

So is it fair to conclude that Wikipedia is not the place to report about controversial issues?

I am unfamiliar with the proper procedures, but I would suggest that the article is marked as "disputed - candidate for removal". Rbakels (talk) 11:49, 28 May 2009 (UTC)

I could put this article up for deletion if you really wanted but, trust me, you will crash and burn. Like it or not, agree with them or not, there are many many examples of people using TRIPS in connection with the question of whether or not software is patentable. You've got the people who want software to be patentable saying software is a field of technology so should be covered, then you've got the people who say that software is abstract so is not covered, then you've got the people who say that TRIPS doesn't say anything to support either side. Whoever you happen to agree with, you cannot deny that people are talking about it, hence the article is not a candidate for deletion.

The solution is simple. You're clearly an experience researcher, you simply have to cite this scientifice research you mention above and report what it says (directly without adding your own interpretation) into the article. Bingo. The article is better and everyone is happy. GDallimore (Talk) 12:02, 28 May 2009 (UTC)

It strikes me as contradictory: you argue that the debate of the relationship between TRIPS and software patents is a fact, so it is appropriate to include a Wikipedia lemma. At the same time you convinced me that an encyclopedia is not the place to debate about unsettled, let alone controversial topics. This issue may be a fact, but that fact is a controversy. The typical approach in such cases in legal journals is to give an overview of the diverging opinions, and then to add the analysis of the author. Yes, that is perhaps "original research", but otherwise readability for the "informed layman" wikipedia is intended for (I guess) is poor.

Anyway, I don't quite agree with you that there is a strong connection between software patentability (and the technical nature of software in articular) and TRIPS, at least not in serious literature. The article quotes some obscure sources. Having a URL does not prove anything ;) (Apparently the Wikipedia rules allow m to say anything if I refer to souces, perhaps my own writings!)

In any case, the section on copyright is misplaced an misleading. The lemma is about software patents, why mention copyright at all? It suggests a relationship, perhaps even a conflict. Oh yes, there is literature about (undue?) "cumulation" of rights, even about "legal hybrids". But - as I noted before - the commonly used TRIPS books do not see a confict. What should an encyclopedia do? Chosing a position may not be appropriate (but the present text at least suggests a position, i.e. the existence of a relationship). Writing an article elaborating both sides? But this is an encyclopedia! I would prefer a "teacher" approach. Teachers don't take political positions, but teachers simplify, and may leave out non-essential minority opinions. Like the suggestion of an undue cumulation.

In sum, I still advocate the article being marked as a removal candidate. Rbakels (talk) 12:48, 28 May 2009 (UTC)

Sorry, but you are clearly missing something. Unfortunately, I'm not sure what. I never said controversial subject matter could not be in Wikipedia. Where did I say that - or what exactly did I say that led you to that misplaced conclusion? What I might have said is that controversial material needs good sources. If your writings have been published in a reliable publication, of course you can cite them (with care).

And where did I ever say that I thought there was a link between software and TRIPS. You're just making your own conclusions about what I'm saying and don't appear to be reading my actual words. What I said was that there is plenty of discussion about whether or not there is a link. eg I could add a reference to Aerotel v Telco and Macrossan's application saying that Macrossan suggested that TRIPS should be interpreted to mean that his idea was patentable while the judge said that, not only did TRIPS not have direct effect, it was also dubious whether the proposed interpretation was correct.

And, you do not appear to be reading the article either. Where does it say that, because software can be protected by copyright it should not be protected by patents? It doesn't, it simply doesn't, and I would remove any statement that said it did without a damn good source since, as you say, it is a popular and faintly ludicrous battle-cry of ill-informed anti-patent bloggers. But, again, on that topic I could cite CFPH's applications - even if it's referring to the distant history of 1973, it does say that many in the software industry thought that copyright was sufficient and that patents were not required. On the other hand, I'm sure that comment would have prompted people to say just how stupid it would be to base modern policy on the state of the industry in 1973, particularly an industry that has changed so radically. I just don't have those sources to hand.

Basically, of course original thought can go into Wikipedia, but it has to be original thought that has first been published outside of Wikipedia.

eg, the final paragraph of your comment above says "the commonly used textbooks on TRIPS do not see a conflict". What books? Cite them. Add what they say into the article. I don't have these books or know what books your talking about. The fact that you say such books exist directly contradicts any reason you might have for deleting this article, so I am still not going to nominate it. GDallimore (Talk) 13:27, 28 May 2009 (UTC)

I only see this text now, many months later. Sorry if I misunderstood your words. Yes, there is turmoil on the interpretation of the words "in all fields of technology". Should Wikipedia elaborate on that? To me, it seems that the TRIPS interpretation is pretty straightforward. If we add "dissendint opinion", it becomes more a magazine article than an encyclopedia lemma.

Yes, I fully agree that that TRIPS' explicit requirement of software copyright protection is no reason to reject patent protection. Should we elaborate on history? In the 1980s, software copyright was controversial (too), no so much because the industry did not perceive a need, but because software does not fit very well into the copyright system.

You ask: "what books?" The next sentence quotes a book. Now I combined the two sentences, so that it is (hopefully) clear that the quoted book is an example of a book that makes the statement I quote in the article.

Several "citation needed" tags were added in the text about the Vienna Convention on the Law of Treaties. Hope I have made clear now, that the text of the provisions of this treaty directly support the statements in the lemma. The same applies to the observation that TRIPS 27(1) is primarily a ban on discrimination by field of technology: "patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology". yes, I could reference the legislative history, which reveals that the prime purpose of the contracting states (read: the US) was to eliminate the (at the time) widely existing discrimination (= limitation) of pharma patent protection.

Rbakels (talk) 12:32, 5 February 2010 (UTC)