Software patents under TRIPs Agreement
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The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPs Agreement, and particularly its Article 27, and whether software and computer-implemented inventions are considered as a field of technology are important elements in the discussion of the international legal framework of the patentability of software, since TRIPs Agreement is binding on all members of the WTO.
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Article 27 of the Agreement
Article 27 paragraph 1 of the TRIPs Agreement states that
- "(...) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involves an inventive step and are capable of industrial application. (...) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced."
The only acceptable exceptions to this provision are laid down in the paragraphs 2 and 3 of the same Article 27. The following elements may be excluded from patentability by WTO members under TRIPs:
- "(...) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law." (paragraph 2)
- "diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (paragraph 3(a)) and
- "plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. (...)" (paragraph 3(b)).
Strictly speaking and as an example only, inventions in the domain of computer science and information technology for instance may not be excluded from patentability by WTO member states under TRIPs Agreement, provided that computer science and information technology are considered as fields of technology.
Relation with the copyright protection
Under of the TRIPs Agreement, computer programs has to be protected by copyright. Indeed, Article 10 paragraph 1 of the TRIPs Agreement states that
- "Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)."”
However, this provision does not explicitly exclude that inventions in the field of computer science for instance may be protected by patents, by virtue of a member state's legal provision.
In this context, it should also be noted that the WIPO Copyright Treaty, although not binding on WTO members, states, in its Article 4,
- "Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression."”
Article 13 of the Agreement
Article 13 of the TRIPS Agreement states that
- "Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder."
This Article states that the only possible "exceptions to exclusive rights" must be confined to "certain special cases". The obligations under Article 27 and the rights to deviate from these obligations are to be interpreted in the light of Article 13.
See also
- Software patents under the European Patent Convention
- EU Directive on the Patentability of Computer-Implemented Inventions
External links
- Official text of the TRIPs Agreement
