TRIPS Agreement
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.
TRIPS was negotiated as part of the General Agreement on Tariffs and Trade - which was replaced in 1995 by the World Trade Organisation. Can you help? What is the relation of these bodies to the UN?
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.
Contents
TRIPS does not require software patents
Sometimes politicians are told that software patents are required for compliance with TRIPS, but this is rubbish.
Full of salient pnoits. Don't stop believing or writing!
Article 10: software is a literary work
Moreover, a direct comment about software in TRIPS is in Article 10:
Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
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.
Support for this interpretation
In the USA, when the 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.[1]
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.
Interoperability exceptions
Article 30
Full text:
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.
Article 40.2
Article 40.2 says:
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.
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.
Related pages on ESP Wiki
External links
- The text of TRIPS on wto.org (pdf)
- Wikipedia:Software patents under TRIPs Agreement
- Avoiding the Software Patent Problem: An Alternative Fix For TRIPS Junkies, by Anton Hughes
- TRIPS and Software Patents in Japan, good general review of TRIPS from a legal perspective
- CodeLiberty.org (available via the webarchive service) was first to raise questions of TRIPS software patent incompatibility in 2004 during the EU Softpat Directive.
- FFII: The TRIPs Treaty and Software Patents
- YouTube video of Joseph Stiglitz on TRIPS (see also: Joseph Stiglitz on software patents, and boycottnovell.com's report on this video)
