Recently we have witnessed intensive discussions concerning the application of the patent law in the area of information technologies. These discussions are predominantly related to the growth in the number of court cases in this area and to the preparation of a Directive of the European Parliament and the Council on the patentability of computer implemented inventions. The SSCS, a professional organization representing interests of specialists and companies from the IT sector, issues the following position on this issue:
According to the currently valid legislation expressed in the European Patent Convention and compatible laws of the Slovak Republic, the impossibility of computer program patentability is clearly declared.
However, a pressure to circumvent this unambiguously expressed position has increased recently. The European Patent Office has issued a number of patents that are on the edge of legality. Simultaneously there has been an effort to create new rules and terms in this area.
Based on our experience we claim that enabling computer program patentability will have a negative influence upon the IT sector in the following ways:
Computer programs are inherently abstract. They do not provide solution to a single concrete task, but can be used for a whole class of similar tasks. Therefore, granting a monopoly (patent) to a program means limitation on a number of other tasks, often only loosely related to the primary purpose of the patented program. Today's applications —computer programs that cover a whole range of tasks — are very large and complex and are created by merging numerous smaller elements (i.e., programs solving partial tasks). This way of construction of applications, called decomposition, is one of the basic methods of information technology. Once we limit the application of some of these elements in this mosaic, the possibility of developing effective applications and their further innovations will be obstructed.
Several studies on this topic were carried out showing that the standard business patent application schemes, as they are known in the machinery or chemistry branches, cannot be applied to the IT branch. As witnessed by the US experience, only some of the biggest corporations — holders of a large number of patents — profit effectively from the patents issued. In contrast, for a multitude of small and medium size companies license fee payments present a high financial burden and often lead to their bankruptcy.
Computer programs belong to the most complex of human creations and consequently patent claims descriptions are very complex and often incomprehensible. It is often the case that there is no simple way to decide whether a given part of a program is or is not protected by an existing patent. This decision is at present left to the courts, but it is a lengthy and financially demanding process. For this reason application developers are exposed to the uncertainty as to whether the given part of a program can or cannot be used. This uncertainty leads to impoverishment of the applications and increases their development costs.
Progress in the IT area is typically reached in a sequence of small steps. New computer program structures are created utilizing older programs. Although a particular program is usually created by a closed group of programmers, ideas and structures used are usually created by the collaboration of a wider body of specialists. Granting a patent to the individual who in this process adds the last bit is ethically disputable and may discourage programmers to collaborate and publish intermediate results.
Last but not least, it is necessary to point out that Slovak citizens and companies dealing with information technologies have not yet declared interest in seeking an EU patent in the IT area (in spite of the large amount of computer related products created). We may thus conclude that they have a negative attitude towards computer program patentability.
On the basis of the aforementioned facts, we are convinced that the option of computer program patentability will have predominantly negative influence on the IT sector and the whole society as well.
We declare that the currently discussed proposal of the Directive of the European Parliament and the Council on the patentability of computer implemented inventions will represent a major shift towards the option of computer program patenting, which is not acceptable for the Slovak Society for Computer Science.
We therefore demand that the current judicial status of complete exclusion of computer program patentability be preserved. Further, we appeal to the public administration representing our – Slovak computer scientists interests, to respect and enforce our opinion both at home and during international negotiations as well.
Simultaneously, we offer to collaborate in addressing issues in this area.
SSCS Executive Committee.
Bratislava, September 16, 2004
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