Talk:Software patents under TRIPs Agreement

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This is real crap as TRIPS 27 does not mean Software has to be regarded a "field of technology"

You have also consider the wording of TRIPS 10 which says that software has to be protected under the berne convention. --Anonymous

The article does not state that software has to be regarded a field of technology. This is exactly the controversial point. Maybe the solution lies in the proper defintion of the word software, and the distinction between computer programs and inventions in a field of technology such as the field of computer science or the field of information technology for instance, don't you think so? --Edcolins 21:03, Dec 8, 2004 (UTC)

Another issue may be that "software ideas" are not 'inventions' and software authors are not inventors. Furthermore software is not an industrial good but a service as all immaterial goods.

International law says that software has to be equal literary works and protected whatever may be the mode of expression. furthermore it is hard to split software in software and concepts of software as software is conceptual per se. And: there is no real difference of object/runtime code and source code which both can be edited while source code is just a more abstract definition, an abstraction that is transformed("compiled") in a more maschine related form of expression. "executable" is maschine code as well as source code that could be intrepreted as well. Many programming languages such as Prolog are pure logic, pure conceptual. As software is already protected by copyright market there is no reason to protect software on a conceptual level by patent law, because those ideas/concepts etc. do not have any value worth to get protected.

If there are no "inventions" in the meaning of patent law I don't see a legal obligation to apply patent law.

The second test is field of technology, I do not think that servies are tehcnical in the meaning of patent law or that patents were meant for services.

I wonder whether it is the purpose of TRIPs to lay down patentability standards as the aim of Trips is that patents are not misused as trade barriers.

I found an intresting paper of Jagdish Bhagwati (former WTO/free trade advocate) from 2002: http://www.columbia.edu/~jb38/FT%20Submission%20on%20IP%20&%20Medicines%20091502.pdf

On 15:45, 10 Jan 2005, 81.224.82.98 gave this comment:

But on the other hand, this reasoning fails both ways when taken to extreme. If the authors copyright where to preempt other laws, it would of course mean that authors could publish illegal content. Or, if governments where allowed to preempt copyright with patents covering the underlying reason to write software, in perfect analogy to that music in audible form is the reason that the musician wrote it, the international treaty becomes worthless. The government would thus say that a companys right to earn money through a monopoly is more important than freedom of expression. The answer lies somewhere inbetween. This leads to that this question is not about existing law, it is about politics - lawmaking. It all boils down to whats fair - is it fair to prejudice the copyright of a profession in favour of private monopolies on authors reasons to write and publish?

Not sure what the end means, the latingage of the last sentence partly contradicts itself at the end. Whatever, it was a discussion contribution so moved it here.

[edit] 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

[edit] 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)