Legal provisions of COM(2002)92 - Patentability of computer-implemented inventions

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dossier COM(2002)92 - Patentability of computer-implemented inventions.
document COM(2002)92 EN
date February 20, 2002

Contents

Article 1 - Scope

This Directive lays down rules for the patentability of computer-implemented inventions.

Article 2 - Definitions

For the purposes of this Directive the following definitions shall apply:

(a) 'computer-implemented invention' means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having one or more prima facie novel features which are realised wholly or partly by means of a computer program or computer programs;

(b) 'technical contribution' means a contribution to the state of the art in a technical field which is not obvious to a person skilled in the art.

Article 3 - Computer-implemented inventions as a field of technology

Member States shall ensure that a computer-implemented invention is considered to belong to a field of technology.

Article 4 - Conditions for patentability

1. Member States shall ensure that a computer-implemented invention is patentable on the condition that it is susceptible of industrial application, is new, and involves an inventive step.

2. Member States shall ensure that it is a condition of involving an inventive step that a computer-implemented invention must make a technical contribution.

3. The technical contribution shall be assessed by consideration of the difference between the scope of the patent claim considered as a whole, elements of which may comprise both technical and non-technical features, and the state of the art.

Article 5 - Form of claims

Member States shall ensure that a computer-implemented invention may be claimed as a product, that is as a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software.

Article 6 - Relationship with Directive 91/250 EC

Acts permitted under Directive 91/250/EEC on the legal protection of computer programs by copyright, in particular provisions thereof relating to decompilation and interoperability, or the provisions concerning semiconductor topographies or trade marks, shall not be affected through the protection granted by patents for inventions within the scope of this Directive.

Article 7 - Monitoring

The Commission shall monitor the impact of computer-implemented inventions on innovation and competition, both within Europe and internationally, and on European businesses, including electronic commerce.

Article 8 - Report on the effects of the Directive

The Commission shall report to the European Parliament and the Council by [DATE (three years from the date specified in Article 9(1))] at the latest on

(a) the impact of patents for computer-implemented inventions on the factors referred to in Article 7;

(b) whether the rules governing the determination of the patentability requirements, and more specifically novelty, inventive step and the proper scope of claims, are adequate; and

(c) whether difficulties have been experienced in respect of Member States where the requirements of novelty and inventive step are not examined prior to issuance of a patent, and if so, whether any steps are desirable to address such difficulties.

Article 9 - Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than [DATE (last day of a month)]. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

Article 10 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 11 - Addressees

This Directive is addressed to the Member States.