I wrote this text in January 2004, during the fight against the EU directive that would have legalised software patents in Europe. We won, and the directive was rejected, but the text is just as relevant today, since practice at the European Patent Office EPO has not changed. This is the explanation how the EPO can continue to grant software patents, even though the European Patent Convention EPC explicitly says that this is illegal. The text is also available in Swedish.
If you have just made a truly innovative movie, and you go to see a patent attorney about taking out a patent for your movie, you will be laughed right out of his office.
— Film and other aesthetic creations are protected by copyright, not patents, he will patiently explain to you, while he chuckles inwardly at the silliness of people who seem to believe that ”intellectual property” is some unified big fuzzy blob that encompasses everything, and don’t realize that there are completely separate pieces of legislation that regulate copyrights, patents, trademarks, designs, and trade secrets, respectively, and that they would often be in conflict with each other if they overlapped, which means they rarely do.
— Begone now, foolish film person, for I have important inventors to meet with to discuss how we can prevent other people from using their ideas, he will conclude, as he starts raising himself from his chair.
But you have traveled a long way for this meeting, and you know that you will be charged for a full hour anyway, so you demand a more detailed explanation as to exactly what it is in the patent law that makes it so unthinkable to get a patent for your movie.
— It’s a great film, you insist, it’s new, it hasn’t been shown in public yet, it’s truly innovative and it will revolutionize the entertainment industry as we know it! Surely that’s what patents are all about, isn’t it?
The patent attorney, who has not seen your film and is therefore unable to dispute any of your claims on factual grounds, resigns himself to delivering a legal lecture.
— What is patentable or not in Europe is governed by the European Patent Convention EPC, he starts, as he brings up the PowerPoint presentation that he has used in introductory classes so many times before.
The convention quite deliberately restricts the subject matter that can be patented to certain specific areas. For example, pure mathematics can’t be patented, because what you would really be doing then would be to try to restrict what ideas people are allowed to have in their heads. This is not only notoriously tricky to enforce from a practical point of view, but more importantly, it would be diametrically opposed to the fundamental purpose of the patent legislation, which is to promote the flow of ideas and information, not to restrict it.
So mathematicians are excluded from being rewarded by the patent system, not because they are evil people — in fact, most of them probably aren’t — but because the lawmakers didn’t believe that progress in the field of mathematics would benefit from having patentability extended into that area.
For this reason, there are certain basic criteria that an idea has to fulfill before it is even considered to be an ”invention”, in the special sense that the word is used within patent law: it has to be ”technical”, and it has to be susceptible of industrial application, among other things. Ideas that do not fulfill these criteria — a storyline for a film, a set of rules for playing a game, a foolproof way to ensure world peace — may still be spectacularly good and totally new ideas, but they are not ”inventions” in the narrow sense of patent legislation, and thus they can never receive patent protection.
In addition to the general criteria for deciding if an idea falls outside the patentable domain, there is also Article 52 of the EPC, which enumerates certain things that are not inventions , and therefore not patentable. Paragraph (1) to (3) of Article 52 read:
(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
— See there, your patent attorney says with a slightly patronizing smile. Right there in black and white: a film is an aesthetic creation which is not technical in nature, it is not susceptible of industrial application, and even if it were, it would still be listed as one of the things that are explicitly not patentable. Sorry, sir, but no.
You are about to leave in disappointment, when you suddenly hit upon a bright idea to get a patent for your film after all.
— Okay, so maybe that’s true, but suppose we do it like this instead. Instead of patenting the movie as such, I would like to patent the idea of a film projector showing my movie. The movie is quite new and fulfills the criteria for inventive step quite well, I’m sure, and the mechanical projector will fulfill all the technical criteria in its own right, so the film and the projector showing it would have what it takes if they are added together.
Yes, that’s right! A projector showing my film is definitely a technical device using the controllable forces of nature to achieve something that is definitely new, namely, the showing of my new film!
— No, no, no, says the patent lawyer says an shakes his suddenly very weary head. That doesn’t cut it at all — you can only get a patent on things that are new, so when you remove the old projector and look at what’s new, it is only unpatentable things left, no matter how new they are.
— If I promise to only sell copies of the film together with a projector?
— If I glue the film to the projector, so that it can’t be changed?
— If I modify the…
— If I…
— No. I’m really very sorry, but there is really nothing we can do for you here. A film as such is not patentable.
You reluctantly accept his answer, and walk home as a broken man.
When you wake up the next morning, you find to your great surprise that you have been magically transformed into a software developer. After giving it due consideration, you decide that you do, after all, prefer what has happened to the cockroach alternative, and proceed to set up a meeting with the same patent attorney to discuss a piece of software that you have written.
— Come in, come in! the patent attorney shines at you as he greets you at the door, you are indeed a welcome sight, for I have spent all morning talking to bimbo brained film people who can’t tell the difference between patents and copyright, so I was in a foul mood before your blessed arrival. What great inventions have you got for me today, pray Sir?
You explain, a little warily at first, because the attorney is an imposing figure and you wouldn’t want him to call you ”bimbo-brained” if you have misunderstood something, that you would like to have a patent on a computer program.
— No problem at all, the attorney says as the reaches for the application forms to the European Patent Office.
— The EPO has already granted over 30,000 software patents since praxis changed in the nineties, and here comes another one! Now, what is it that you have invented?
But before you start describing your software, which, to be perfectly honest, you yourself wouldn’t really consider to be all that spectacularly innovative, but which your friends have told you will probably be patentable anyway, you feel that you want to be a little bit more certain about the legal basis for software patents.
Because you have recently been in frequent informal consultations with you alter ego in the movie business, you direct the attorney’s attention to Article 52 of the EPC again, and point out that the list of things that appear to be explicitly excluded from patentability includes not only aesthetic creations like movies, but also computer programs. If aesthetic creations like films can’t be patented because they are explicitly listed in Article 52, oughtn’t the same apply for the other things that are also listed there, such as computer programs?
— No, no, no, the attorney answers with a reassuring smile, this is a perfect example of why you need a patent lawyer to explain things to you, rather than just rely on what you might read. You have to read the entire Article 52 to understand it properly, see? If you go on to read the rest, you’ll find that in paragraph 3 it says that the ban on patents for these things only applies to the respective thing ”as such”. As long as they’re not ”as such”, we can patent them as much as we want to!
If you come to us with your software as such, I’m afraid we can’t help you, that’s true. But as long as it’s not ”as such”, we can! This means that you can only get a patent if the software is part of a technical system like, well… perhaps — you guessed it! — a computer system, for example. Voila! A computer program as such is not patentable, no sir, not as such. No way, no.
But a computer program that runs on a computer is! And the best part of it, do you know what that is? Most computer programs actually do!
You hear the clock on the church tower outside the window strike noon, and you can feel how the effects of the magic spell are wearing off, and how your normal movie-making persona is coming back.
— Would the same apply if I wanted to patent something else that is mentioned in Article 52(2), like, say, a film?
— No, a film as such is not patentable, so that wouldn’t work at all.
— But a mechanical movie projector that was showing my film?
— If the movie projector in itself was innovative you could get a patent on the projector, but that patent wouldn’t cover the film anyway. The film as such is not patentable.
— But if I patent the film and the movie projector together, then it isn’t a patent for the film as such.
— I understand that you are referring to the ”as such” phrase in paragraph 3, but you can’t read it like that when you are talking about aesthetic creations. What it says then, is simply that a proper invention shall not be disqualified just because it also contains things listed in paragraph 2, as long as the invention is acceptable otherwise. An innovative movie projector can very well be patented even though it requires an aesthetic creation in the form of a movie to be of any use to anybody. But the patent doesn’t cover the movie as such. Look, think of it like this: you can’t patent gray plastic boxes as such, but that doesn’t mean that an invention is disqualified because it comes in a gray plastic box. That’s all that that paragraph means in this context, really!
— So if I create something very new by running a very new film in a very old projector, I can’t get a patent on it?
— No, because all the very new things are in the film, and the film as such is not patentable even if it is new.
— Not as such?
— No, not as such.
— But if I create something very new by running a very new computer program on a very old computer, I can get a patent on it?
— Yes, but not as such.
— But I can get a patent?
— On the program?
— As such?
— No, not as such.
— But how is new software on old hardware different from new software as such, except for the parts that are old?
— It still isn’t software as such.
— But with films, if…
— Anyway, that’ll have to be all for today! he says when you are just about to ask him again to please explain when ”as such” means ”as such” and when it doesn’t, as such.
— It’s been real nice talking to you but now you really have to excuse me, I have a plane to catch, your patent attorney continues. I’m popping over to Munich to have a chat with the boys at the EPO, over dinner and drinks, of course. All paid for by software patents — did you know that the EPO is funded directly by the patent fees, so the more patents we grant, the more money for everyone in the business! We’re going to rewrite the law so that there is no question that we can patent whatever we bloody want to in the software arena in the future — and elsewhere too, for that matter. About time too, say I, there have been far too many of them noisy impertinent troublemakers running around shouting about Article 52 here lately. Damned stupid Article, if you ask me. Why would you want to limit patents, isn’t a patent lawyer allowed to eat any more?
And those Members of Parliament, who had the nerve to try and come and think they could change things, when we had already decided! Some people, well, I tell you…
Anyway, ciao, ciao, and tudeloo! he says as he picks up his briefcase and heads for the door.
— But to change the laws, doesn’t that mandate actually belong to the elected politicians in parliament? you ask yourself, but evidently do it out loud.
He is already halfway out the doorway, but he stops and looks at you with the kind of smile that you normally reserve for very young children who haven’t really understood anything.
— Of course it does, they and they alone have a mandate from the citizens to exercise the power to make new laws. But the way we see it, they only have that power ”as such”.
The real decisions we prefer to make ourselves, quite frankly.