TRIPS is an international agreement to which 155 countries are members, including all large and medium-sized software producers. TRIPS requires that patents exist in certain domains and that they have a duration of 20 years.
As of 2012, the signed but not ratified ACTA treaty is widely seen as the first post-TRIPS treaty bearing similar levels of harm.
TRIPS was finalised in 1994 and exists as an annex to the Agreement establishing the World Trade Organization. Members of the WTO are thus "members" of the TRIPS agreement. World Trade Organisation is not part of the United Nations. It was created after negotiations for a UN trade organisation (the ITO) failed.
TRIPS does not require software patents
Sometimes politicians are told that software patents are required for compliance with TRIPS, but this is rubbish.
Article 27: fields of technology
The clause used as a base for this rubbish claim is Article 27 paragraph 1:
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.
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.
Some software developers call their work "technical" (in the sense of "complex"), but interpreting TRIPS requires us to look at what "technical" means in a legal context. In a legal context, software can be categorised as a work of authorship instead of a work of technicians. This view is supported by TRIPS article 10 which calls software a "literary work".
It is also confirmed by the European Patent Convention, which was written to comply with TRIPS and which contains an exclusion for "programs for computers". (Recent interpretations from patent owners have pushed to narrow this exclusion, but the exclusion is still in the Convention text.)
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.
Treatment of TRIPS by courts
The Germany Federal Patent Court, in 2000, explicitly rejected the idea that TRIPS affected software patentability.
The Treaty on Trade Related Aspects of Intellectual Property Rights (TRIPs) does not entail any different judgment of patentability. Independently of the question as to in what form - directly or indirectly - the TRIPs treaty is applicable here, the application of Art 27 TRIPs would not lead to any extension of patentability here. The wording, according to which patents shall be available for inventions in all fields of technology, merely confirms the dominating view of german patent jurisprudence, according to which the concept of technology (Technik) constitutes the only usable criterion for delimiting inventions against other kinds of intellectual achievements, and therefore technicity is a precondition for patentability (the "Logikverifikation" decision of the Federal Court of Justice (BGH) sees Art 27 TRIPs as "posterior confirmation" of this jurisprudence). The exclusion provision of Art 52 (2) and (3) EPC can also not be construed to be in conflict with Art 27 TRIPs, since it is based on the notion of lacking technical character of the excluded items.
The Commissioner’s Reasons refer to the “technological” nature of all five categories of invention, the requirement in the Patent Rules that a description refer to a “technical problem” and the language in the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS).
The judge simply notes an argument from the Commissioner but doesn't mention that this deserves any consideration and doesn't mention it in his own reasoning.
Treatment of TRIPS by legislators
In September 2003, in the "frist reading" stage of 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.
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 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.
Non-commercial exception? In anti-competition cases?
The following could be useful since certain models of software development and distribution rely mostly or exclusively on doing so non-commercially.
Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:
(b) [...] or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;
A footnote clarifies that "other use" (mentioned in the first line) "refers to use other than that allowed under Article 30."
The text then gives a list of conditions which apply, but says:
(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive.
Related pages on en.swpat.org
- 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.
- The TRIPs Treaty and Software Patents, FFII
- YouTube video of Joseph Stiglitz on TRIPS (see also: Joseph Stiglitz on software patents, and boycottnovell.com's report on this video)
- German original: German court ruling "BPatG Fehlersuche 2000-07-28" (English translations[?]: Google, bing translator)
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