Based on a Google translation, so even the bits I have cleaned up are not particularly good. Pages 3 and 5 are still raw SYSTRAN. Most interesting, I think, for the capsule arguments being deployed. These are what any letter-writing campaign needs to knock down. BTW, I don't find the phrase "in accordance with the BMVIT proposed Instruction" particularly sinister. I'm sure the UK works similarly -- a brief will be prepared by the UK policy civil servants in the domestic department; will then be passed to the Foreign Office; and then sent to UKREP in Brussels. All I think the phrase means is that the BMVIT recommended line hasn't been over-ruled by the Austrian Foreign Ministry. Of course, the important question is whether the BMVIT line is what its minister actually wants -- but that is something we can't tell from this document; my guess would be that (unfortunately) it probably is -- unless we can convince him otherwise... Anyhow, here's the partial translation, such as it is. =========================================================== Briefing to the Austrian EU representation in Brussels. [[ BMVIT = the Austrian ministry for Transport, Innovation and Technology ]] Original DE text linked via http://swpat.ffii.org/papiere/europarl0309/bmvit0405/index.de.html 2. Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions. Political agreement Dok. 11503/03 CODEC 995 pi 70 (x) 9051/04 pi 39 CODECS 651 Background: Basis of the discussion is now the text of the Directive in Dok. 9051/04 from 3 May 2004, which was submitted by the presidency following the discussion in COREPER on 30 April 2004. As noted by the Permanent Representatives' meeting in Brussels, the text of the Directive is unchanged from the predecessor document of 8731/04, *so that the Advice for 30 April (modification of the instruction for 21 April) can remain fully endorsed*, since in particular no new developments can be identified concerning Austrian interests. ** Austria welcomes the increasing agreement for the text of the presidency, and indicates that it is flexible concerning suggested modifications in the spririt of the Italian proposal (concerning Recital 7a) and the Danish proposal (concerning Articles 6a and 8cd). ** (in accordance with the BMVIT proposed Instruction) Regarding the German proposal (concerning articles 2b) it should at least be made clear that the processing and handling of information are not to be excluded from patentability, if this processing or handling makes a technical contribution (e.g. if by the improvement of the operating system of a computer the same achieves an increased operating speed, and thus the improvement of technical equipment is present). *Further regarding the German proposal, see also the attached proposed Advice (originally: the preceding Instructions).* ============================================================= (FOR RECENT ARRIVALS) PROPOSED INSTRUCTION FOR THE 2050th MEETING of COREPER I ON 30.4.2004 RE: DIRECTIVE ON COMPUTER-IMPLEMENTED INVENTIONS? Based on the Directive text in Presidency doc. 8731/04 as well as the German proposals expressed in the COREPER sitting of 21 April 2004 (cancellation of recital 13, modification of recital 13a, and new formulation of the article 2b), as well as the proposal of Italy (to bring recital 7a into the Articles section), and in view of the results of the meeting on 21 April 2004, would supplement the Advice for the meeting of 21.4.2004 (see below), modifying it as follows: **Austria entirely supports the welcome attitude of the presidency adopted in the meeting of 21 April, namely to uphold in principle the current text version, however to consider as positive the suggestions for improvement concerning the recitals 7a, 13 and 13a.** (in accordance with the BMVIT proposed Instruction) This is justified as follows: Recital 7a concerns the exclusion of computer programs as such from patentability. This covers itself with the often expressed intention of all delegations and can be transferred therefore in desirably more getting straight to the ordering part of the RL. >>>>> Likewise is EEC understandable 13 the fear concerning that those there made positive formulation (?eine defined procedure or action succession accomplished in connection with a computer.... a patentable invention can represent?) to the misunderstanding cause to give could, computer programs as such had to be regarded as patentable. Even if 13 appears contentwise acceptable to the EEC, then can be agreed nevertheless its cancellation. Must be adapted to the EEC in a general manner then, as suggested by Germany. The German text suggestion on the article 2b it cannot be agreed however also in the new version (whereby the Austrian attitude agrees also here with that one of the presidency): ------------------------------------------------------------ /3 The word?predominate? and does refer to a too restrictive kind of the evaluation of the invention characteristic if necessary could is one contentwise unclear in conformity with the existing patent law formulate that?die technical characteristics? regarding the registration article regarded in the whole of its characteristics? itself in obvious way devoted from the state of the art may not?. The definition that?der use from natural forces to control of physical effects, which go beyond the digital representation of information? anyhow belonged to a field of the technology, is essentially correct, does not appear not necessary however. The last sentence, which excludes the processing, handling (as well as the presentation, is particularly problematic) in principle from information in its whole and from the patenting barness. As already in the instruction for the meeting implemented from 21 April, this appears as an inadequate restriction of the protection of the invention activity. The relevant objections of the commission is to be agreed therefore. Austria expresses itself against the assumption of the formulation of the article 2b in accordance with the German suggestion. (in accordance with the BMVIT proposed Instruction)can be met to the Danish suggestion for a new article ã and 8 CD positively. Even if the text appears sufficient to the presidency from Austrian view? how also of the EK describes? so nevertheless the renewed stress of the importance of the sicherstellung of interoperability is a desirable accent. ------------------------------------------------------------ /4 INSTRUCTION SUGGESTION FOR THE 2049. CONFERENCE of the ASTV I AT the 21./23.4. 2004 TO THE TOP? ARRANGING LINE FOR COMPUTER-implemented INVENTIONS? ------------------------------------------------------------ /5 BACKGROUND: Computer-implemented inventions (?Softwarepatente?) constantly increased in the past in number and meaning. A continuation of this trend is to be expected because of the significance of software developments for the invention nature. As rapid a one as possible enter into force to a RL, standardized which be patentable should and which is not considered worthwhile, will must therefore in the sense of the equal chances for the Austrian economy. From Austrian view it was however always necessary the different? each other conflicting? To weigh interests: On the one hand a part of the industry demands vehement SWPatente as innovation protection and as instrument in the competition controversy against competitors from Japan and the USA. On the other hand representatives the open SOURCE movement are afraid a too long-range patenting practice just like some KMUs as existence-threatening Knebelung of their activities. sometimes can at relatively small expenditure one for the competitors very extensive scope of protection hardly which can be gone around achieve. Therefore is patenting of purer? more?nichttechnischer? Software remain forbidden. In particular business practices and algorithms the patent protection is to remain refused (contrary to the USA). Likewise interoperability is to remain as far as possible ensured of software developments. However on the other hand the protection for given patents, which make a technical contribution, may be weakened not unnecessarily. Therefore also a data medium is to fall with the protected software under the patent protection. Under any circumstances however doesn't a computer program, and/or its data medium fall?als such? under the patent protection, but this is granted only if the technical contribution is given. During the advice text essentially this present Pruefund distribution practice (special the European patent office) fixes whereby however clearly a technical contribution of a software invention is demanded the European parliament in first reading to a large extent to the demands of the opponents of software patents corresponded. This does not correspond to the concerted point of view of the advice (see to point 3 in Dok. 8253/04) the second reading after the elections to the European parliament (12.6.2004) will only take place ------------------------------------------------------------ /6 TO the QUESTIONS of the POINTS 711 FROM DOK. 8253/04, AND FOOTNOTES 1719, 21 FROM ADDS 8253/04 point 7: >>>>>>>>>>>>>>>>> In the interests of the TRIPS compatibility of the Directive, the Commission would like to establish the technical nature of a computer-implemented invention in its own article 3. It has however already signalled in the Working Group that it would be content also with the recitals 7a, 12. ** Austria can accept both versions, however maintaining the recitals instead of a new article 3 is preferred, in order to accomodate the European parliament. ** (in accordance with BMVIT proposed Instruction) However should the European parliament's alternative article 3a (proposed amendment 45) be debated (as was the case in Working Group), this is to be rejected: the processing of data may not be declared unpatentable in principle. If, e.g. by a reorganisation of the operating system, a doubling in the speed of a computer were achieved, then clearly the improvement of a technical device would be seen. However the statement of recital 13a, that the mere implementation of a not-patentable method on a computer does not justify its patentability, is to be regarded as a necessary clarification. If necessary: ** Austria rejects the restrictive formulation of the proposed amendment 45 (new article 3a). The clarification of recital 13a however appears necessary.** (in accordance with the BMVIT proposed Instruction) point 8: The Commission reservation against article 5,2 is based on the fear that it could make patent claims on computer programs, and/or data media permissible "as such". Since however article 5,2 on the contrary permits such a claim *only* if the program in question justifies a product or process claim (and that product or process must therefore be of a technical nature), Austria shares the opinion of the Delegations that this danger does not exist. On the contrary, it is necessary in the interests of strong patent protection that the data carrier of a ------------------------------------------------------------ /7 legal protected program likewise falls under patent protection. ** Austria expresses itself in favour of the retention of article 5,2. Strong patent protection for guaranteably technical software inventions must in any case contain protection for the data medium. ** (in accordance with the BMVIT proposed Instruction) points 9,10: The interoperability of computer programs, and a possible handicapping of it by the patentability is a critical problem. Austria has therefore expressed sympathy in the Working Group for the Luxembourg proposal to establish interoperability surely; however, that in view of the questionable TRIPS compatibility, and so as not to reduce negotiating room with the European parliament, retention of recital 17 would be just as sufficient (the presidency has also referred to the whole of recitals 7a, 12, 17 and the article 5,2 in this connection). ** Austria stresses the need to ensure interoperability of software as far as possible unhindered and could therefore agree acceptance of the Luxembourg proposal, if this finds a majority. However the alternative of retaining recital 17 can be agreed, and thus a solution of the problem outside of the patent law, which also corresponds with the view of the presidency. ** (in accordance with the BMVIT proposed Instruction) point 11, and footnotes 17.18.19 in the Addendum to 8253/04: The German proposal on the definition of "technical contribution" can be only partly be supported: it correctly stresses that the technical contribution of a claimed item must be judged as a whole, i.e. in the sum of its technical and non-technical characteristics. However "Control over physical forces" (a formula of the German Judiciary worked out in the past ------------------------------------------------------------ /8 on Technicity) is inadequate as a definition of the "technicalness" characteristic of software inventions. It relates rather to the controlling of information flow, in order to obtain a technical effect (for example improvement of the function of technical equipment). The Spanish/Portuguese suggestion is to be rejected. Assessment of the degree of inventiveness can properly take place only if the article in question is judged in its entirety (technical characteristics -- which absolutely must be present -- in synopsis with the non-technical characteristics). It can increase the degree of the inventive step from an unrelated use (which can lie in a non-technical area). In addition excluding non-technical characteristics in the characterisation of the patent claim would increase the scope of protection improperly, which would be directed exactly against the intention of meaningfully restricting patentability. ** Austria expresses itself in favour of assessing the degree of inventiveness of an claimed item from the entirety of its technical and non-technical characteristics. Assessing the inventiveness of a claimed item from the entirety of its characteristics is the only appropriate way to determine the degree of its inventiveness in the patent-law sense. Otherwise the prohibition of additional non-technical characteristics in the characterisation of patent claims could sometimes expand the scope of protection too much. The exclusive definition of "technology" as "control over physical forces" is not sufficient, and too restrictive on its own by itself in view of the characteristic nature of software inventions achieving a technical effect by control of information. ** (in accordance with the BMVIT proposed Instruction) _______________________________________________ bxl mailing list (un)subscribe via http://lists.ffii.org/mailman/listinfo/bxl and http://aktiv.ffii.org/. If you subscribed via the latter, you can unsubscribe only by going to both.