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| + | This artclie keeps it real, no doubt. |
| − | '''TRIPS''' is an [[international agreement]] signed in 1994 by most countries of the world. TRIPS requires that patents exist in certain domains and that they have a duration of 20 years.
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| − | TRIPS was negotiated as part of the ''General Agreement on Tariffs and Trade'' - which was replaced in 1995 by the [[World Trade Organisation]]. {{help|What is the relation of these bodies to the UN?}}
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| − | As of 2010, the in-negotiation [[ACTA]] treaty is widely seen as the first post-TRIPS treaty that will, if ratified in it's current form, cause the same level of harm as TRIPS has.
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| − | ==TRIPS does not require software patents==
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| − | Sometimes politicians are told that [[software patent]]s are required for compliance with TRIPS, but this is rubbish.
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| − | ===Article 27: fields of technology===
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| − | The clause used as a base for this rubbish claim is Article 27 paragraph 1:
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| − | <blockquote>
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| − | 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.
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| − | </blockquote>
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| − | However, TRIPS does not say that writing software is a "field of technology". In fact, that term is not defined at all, so every legislature is free to decide which activities are and which aren't part of a field of technology.
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| − | Remember, the question is not about whether software developers consider their work to be part of a "field of technology" or not. It's a purely legalistic categorisation question. In legal terms, legislatures have to choose whether to put software into the category of being patentable (being a "field of technology") or being not patentable. We ask them to define software as non-patentable.
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| − | ===Article 10: software is a literary work===
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| − | Moreover, a direct comment about software in TRIPS is in Article 10:
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| − | Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
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| − | </blockquote>
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| − | Literary writing is not a field of technology, so this sentence implies that the authors of TRIPS did not intend software to be counted as a field of technology.
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| − | ===Support for this interpretation===
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| − | In the [[USA]], when the [[US Supreme Court|Supreme Court]] was considering the [[Bilski]] case and the patentability of software and [[business method patents]], their decision made no mention at all of TRIPS or any other treaty.<ref>http://www.supremecourt.gov/opinions/09pdf/08-964.pdf</ref>
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| − | In 2003, during the [[EU software patents directive]], the [[European Parliament]] voted amendments which clearly excluded software from patentability. They clearly didn't see any problem with this position and TRIPS.
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| − | ==Interoperability exceptions==
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| − | ===Article 30===
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| − | Full text:
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| − | <blockquote>
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| − | Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
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| − | </blockquote>
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| − | ===Article 40.2===
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| − | Article 40.2 says:
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| − | <blockquote>
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| − | Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.
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| − | </blockquote>
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| − | Since software patents have severe adverse effects on competition and markets, so there is clearly grounds for adding conditions to the use of patents in relation to software, communication, standards, compatibility, etc. This approach was suggested, but also disputed, in [[Japan]].
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| − | ==Related pages on {{SITENAME}}==
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| − | * [[international agreement]]
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| − | * [[ACTA]]
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| − | * [[ACTA-6437-10.pdf as text]]
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| − | ==External links==
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| − | * [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm The text of TRIPS on wto.org] ([http://www.wto.org/english/docs_e/legal_e/27-trips.pdf pdf])
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| − | * [http://en.wikipedia.org/wiki/Software_patents_under_TRIPs_Agreement Wikipedia:Software patents under TRIPs Agreement]
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| − | * [https://elaw.murdoch.edu.au/archives/issues/2007/1/eLaw_avoiding_software_patent_problem.pdf Avoiding the Software Patent Problem: An Alternative Fix For TRIPS Junkies], by Anton Hughes
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| − | * [http://k.lenz.name/e/TRIPSJapan.pdf TRIPS and Software Patents in Japan], good general review of TRIPS from a legal perspective
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| − | * [http://web.archive.org/web/20050409003447/www.codeliberty.org/softpats.php CodeLiberty.org (available via the webarchive service)] was first to raise questions of TRIPS software patent incompatibility in 2004 during the EU Softpat Directive.
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| − | * FFII: [http://eupat.ffii.org/analysis/trips/index.en.html The TRIPs Treaty and Software Patents]
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| − | * [http://www.youtube.com/watch?v=UzhD7KVs-R4#t=16m00s YouTube video of Joseph Stiglitz on TRIPS] (see also: [[Joseph Stiglitz on software patents]], and [http://boycottnovell.com/2009/11/04/trips-intellectual-monopolies/ boycottnovell.com's report on this video])
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| − | ==References==
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| − | {{reflist}}
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| − | {{footer}}
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| − | [[Category:International agreements]]
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