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«Antti Peltonen (chairman), Anders Carlberg, Jukka Kemppinen, Ben Rapinoja, Pekka Salomaa, Antero Virkkala, Jouko Yli-Kauppila The Patentability of ...»

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AIPPI Q 158

- National Group Report Finland – Finnland – Finlande

Antti Peltonen (chairman), Anders Carlberg, Jukka Kemppinen, Ben Rapinoja,

Pekka Salomaa, Antero Virkkala, Jouko Yli-Kauppila

The Patentability of Business Methods

II. The legal situation in the country

II.1 The question of the patentability of business methods cannot be isolated from the

problem of the protection of intellectual and

Abstract

methods.

The groups are therefore invited first of all to indicate the exclusions from patentability, as provided for by the law of their country, based on the abstract

nature of the invention:

- statutory exclusions;

- and exclusions arising from case-law.

If intellectual and abstract methods are excluded from patentability, the groups are invited to give details as to the basis of this exclusion.

According to Section 1 of the Finnish Patents Act, the following as such, for example, shall not be regarded as inventions: discoveries, scientific theories and mathematical methods; schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; presentations of information.

The basic reason for the above-mentioned exclusions is the non-technical nature of the listed inventions and thus the lack of industrial applicability. It should, however, be noted that the exclusions apply to the inventions mentioned only as such.

II.2 Are business methods patentable or, on the contrary, are they excluded from patentability in the legislation of your country?

Business methods as such, i.e. as procedures or rules to be followed by a human being, are excluded from patentability in the legislation.

II.3 If business methods are excluded from patentability, does this exclusion concern only the methods in themselves, or does it also apply to any invention applying business methods?

AIPPI Q 158 2

- National Group Report The exclusion of business methods from patentability concerns the methods only in themselves, i.e. as such, and any inventions having a technical nature, although applying to business methods, are patentable if the other two prerequisites, i.e.

novelty and inventiveness, are fulfilled. Thus e.g. claims drafted to concern a business method and restricted to be carried out by a digital processor may be patentable.

II.4 If business methods are not patentable, are there other means of protection of business methods, particularly copyright ?

Even though a business method would be regarded as a patentable invention, it may also be protected by other intellectual property rights. For instance, a business method may be deemed to involve works protectable by copyright. Utility model protection will not apply since methods are not generally protectable by utility model right in Finland.

II.5 If business methods are patentable, is there a distinction in the grant of protection between business methods used in the context of tradition at business and business methods used in the context of the Internet?

As mentioned in point II.3, business methods having a technical nature are patentable irrespective of whether they are used in the context of tradition at business or in the context of the Internet. The technical nature is, however, usually inherent in business methods used in the context of the Internet since functioning of these business methods is usually based on software.

II.6 If business methods are patentable in the country, have the national courts already had the occasion to decide on the extent of the protection conferred by patents concerning such methods? In the affirmative, have the Courts applied specific rules or, on the contrary, the normal rules governing the patent system?

It is not to our knowledge that there would have been any court decisions concerning patentability of business methods.

III. Opinion of the groups III.1 Do the groups consider that business methods, as defined above (see I (f)), taken in themselves, constitute inventions?

With reference to our answer in paragraphs II.1, II.3 and II.5, business methods as such (i.e. in themselves) should not be regarded as inventions provided that they do not have a technical character.

III.2 In the opinion of the groups, is the exclusion of patentability for business methods in conformity with the provisions of Article 27 of the TRIPS agreement?

To our understanding, this exclusion is in conformity with Article 27 of the TRIPS Agreement since this provision expressly requires technical character from

–  –  –

III.3 If national legislation does not currently provide for the possibility of protecting business methods, taken by themselves, by invention patents, do the groups think that their patentability is desirable?

Reference is made to our answers in paragraphs II.1, II.3 and II.5.

III.4 If the answer to III.3 is in the affirmative, can the groups specify whether patentability should solely cover business methods used on the Internet, that is to say which directly implement technical means present on this network or, on the contrary, whether patentability should be accepted for all business methods without distinction?

Patentability of an invention should be evaluated on the basis of novelty, inventiveness and capability of industrial application. Therefore, only the use of a certain invention on the Internet or on another network should not be any additional ground or justification for patentability as such.





III.5 If the answer to III.3 is in the negative, the groups are invited to express their opinion on other means of protection of business methods, such as copyright. In this case, it is requested that the groups present the respective advantages and disadvantages of patents and other means of protection of business methods. On this point, the groups may also refer to the aforementioned resolution (see I (c)) on computer programs.

Reference is made to our answer in paragraph II.4.

III.6 If the business methods are the subject of invention patents, the question arises as to the scope of the protection conferred by a patent concerning such methods.

Would this be protection limited to the method itself, or would it be necessary, following the example of the process patent, to provide for protection in addition for products or services marketed through such methods?

Our opinion is that in this respect, the general rules concerning the scope of the patent should apply. According to the Finnish patent law, the scope of the patent protection shall be determined by the claims together, and, if necessary, with the description. To our understanding, a patented business method shall not confer protection for products or services which are provided through such patented business method on the Internet. The patent protection could be conferred for such products or services only if they form a patentable invention claimed in the patent specification.

III.7 Should the rules for assessment of the scope of patents covering business methods be the same as for traditional method or process patents or, on the contrary, should specific rules be applied by the courts, and in this latter case, which rules?

–  –  –

Our opinion is that general rules and provisions of patent law concerning patentability of inventions as well as the other matters mentioned should be applied to business methods as such without any specific additional rules or exceptions. To our understanding, there is no need for specific ”sui generis” protection for business methods.

III.8 Do the Groups consider that the inventive activity of an invention concerning a business method may arise as a result of the simple fact of adapting a known method to new means of communication, such as the Internet?

Our opinion is that the sole adaptation of a known method to such means of communication as the Internet does not involve an inventive step unless it is done in a way inventive per se.

III.9 With respect to acts of infringement, should the usual rules in patent law be applied: direct or indirect infringement, infringement by incitement, supply of means etc., or on the contrary should special rules be applied to patents covering business methods?

Thus, the US Act of 29 November 1999 provided a new defence in the event of alleged infringement of a patent with process claims. And the question arises in interested circles as to whether these new legislative provisions apply to all patents including process claims or only those where the claims concern business methods.

Our opinion is that general rules of patent law should be applied.

III.10 Should rules concerning compensation for loss as applied to the infringement of patents covering business methods be the same as are applied to patents covering inventions in traditional fields, or should these rules be modified for the infringement of patents covering business methods, taking account of the fact that these methods are not used, in principle, for the manufacture of products but solely for the sale of products and services?

Reference is made to our answer in paragraph III.9. It is to be noted, however, that the general question concerning the choice of applicable law in the intellectual property infringement matters which have occurred through the Internet still remains open to a certain extent.

III.11 Should the rules of evidence concerning the infringement of a patent covering business methods be the same as those concerning process patents or patents for traditional methods? In particular, do the groups consider that the provisions of Article 34 of the TRIPS agreement concerning the burden of proof should apply to patents covering business methods?

Reference is made to our answer in paragraph III.9.

–  –  –

IV. Conclusions / Zusammenfassung / Conclusion The groups are invited to respond to the above questions in the indicated order, and to make any suggestions concerning the protection of business methods by invention patents on points which have not been specifically referred to in the above questionnaire.

Our opinion is that business methods should be regarded as patentable inventions, provided that they are new and fulfill the requirements of inventiveness and technical nature. General rules and provisions of patent law concerning patentability of inventions should apply to business methods.

Our opinion is that there should not be any need for specific additional rules or exceptions for business methods. Moreover, we do not see any reason for specific ”sui generis” protection for business methods in addition to the existing intellectual property rights.

In this context we would like to draw attention to the choice of applicable law in patent and other intellectual property infringement matters which are related to business methods used on the Internet.

Moreover, it would be important to clarify the current interpretation of the technicality requirement with regard to business methods. In our opinion, the requirement of technical nature should be interpreted broadly, i.e. an invention related to business methods should be regarded as lacking the technical nature requirement only where it is prima facie evident that no technical consideration for implementing the particulars of the invention is necessary. According to this interpretation, the lack of technical nature would be confronted in very few cases.

____________

Unsere Ansicht ist, dass Business-Verfahren als patentierbare Erfindungen betrachtet werden sollten, vorausgesetzt dass sie neu sind und die Anforderungen an Erfindungshöhe und technische Natur erfüllen. Allgemeine Vorschriften und Bestimmungen des Patentgesetzes betreffend die Patentierbarkeit von Erfindungen sollten auf Business-Verfahren angewendet werden.

Unsere Ansicht ist, dass es kein Bedürfnis zu spezifischen, zusätzlichen Vorschriften oder Ausnahmen für Business-Verfahren bestehen sollte. Weiter sehen wir keinen Grund zu einem spezifischen ”sui generis”-Schutz für BusinessVerfahren außer den existierenden geistigen Eigentumsrechten.

In diesem Zusammenhang möchten wir auf die Wahl eines anwendbaren Gesetzes bei Patentverletzungen und anderen Verletzungen des geistigen Eigentums, die sich auf im Internet benutzte Business-Verfahren beziehen, Aufmerksamkeit lenken.

AIPPI Q 158 6

- National Group Report Außerdem würde es wichtig sein, die aktuelle Interpretation der Anforderung an technische Natur mit Hinsicht auf Business-Verfahren zu verdeutlichen. Unserer Ansicht nach sollte die Anforderung an technische Natur weit interpretiert werden, d.h. es sollte betrachtet werden, dass einer Erfindung, die sich auf BusinessVerfahren bezieht, nur dann die Anforderung an technische Natur mangelt, wenn es prima facie offenbar ist, dass keine technische Rücksichtsnahme zum Verwirklichen der Einzelheiten der Erfindung erforderlich ist. Gemäß dieser Interpretaton würde Mangel an technischer Natur nur selten konfrontiert werden.

____________

Nous sommes d’avis que les méthodes commerciales devraient être considérées comme des inventions brevetables, à condition qu’elles soient nouvelles et répondent aux exigences d’activité inventive et de technicité. Les règles générales ainsi que les dispositions des lois concernant la brevetabilité des inventions devraient s’appliquer aux méthodes commerciales.

Nous sommes d’avis qu’il n’y a pas besoin de règles spécifiques additionnelles ou d’exception pour les méthodes commerciales. D’autre part, nous ne voyons pas la raison pour laquelle il faudrait constituer des règles spécifiques « sui generis » pour la protection des méthodes commerciales en plus des droits déjà existants en matière de propriété industrielle.

Dans ce contexte, nous voudrions attirer l’attention sur le choix de la loi applicable concernant la contrefaçon des brevets et d’autres propriétés industrielles relatives aux méthodes commerciales pratiquées sur l’internet.



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