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Legal background

Article 2 determines the conventions of intellectual property that should be applied. Among others, the article mentions the Paris Convention, the Bern Convention, the Convention of Rome and the intellectual property treaty referring to integrated circuits.

Articles 9 and 10 in particular describe the field of application for copyrights that can be protected by the International Convention of Bern 1971. It is explicitly mentioned in article 9 that the following items:

• ideas,
• proceedures,
• operation methods,
• mathematical concepts

should be excluded as such.

On the other hand, article 10 mentions that computer programs, taking the form of source code as well as object code, should be protected like literary works submitted to the definition of the Bern Convention.

Additionally, data compilations and other materials, being readable by machines or other means, should equally be able to constitute intellectual creations to be protected as such.

A first European Directive (91/250/EEC) was voted to adjust to this regulation concerning software.

A second European Directive (96/09/EEC) was voted to adjust to this regulation concerning databases.

Finally, article 27 defines the subjects possibly susceptible to protection by means of a granted patent. It is precisely mentioned that patents should be granted for all inventions (whether they concern a product or a method) in all technological fields, provided that criteria of novelty, inventiveness and industrial application are met (see article 27(1) TRIPS).

In addition, article 27(2) and (3) explicitly mention the subjects excluded from patentability, such as:

• methods of therapeutic, diagnostic or surgical treatment of human beings or animals,
• plants or animals other than micro-organisms,
• biological processes for the production of such plants or animals other than non-biological and microbiological processes,
• inventions against public order and morals, including protections against human, animal or vegetal life, and
• inventions bringing damage to the environment.

This means that, according to article 27, all other domains, except those specifically excluded and textually mentioned in paragraphs 2 and 3 of article 27 should be able to fall under patent protection, software or programs and business methods require_onced.

Furthermore, it should be noted that steps have already been taken in the two most important countries, namely Japan and the United States, concerning the protection of software and business methods by means of a patent.