Industrial

Patents were invented for the industrial sector, not for service-oriented markets. Expensive, intricated and clumsy rights slow down the software market which is all about providing services.

Software development is no manufacturing process. It is a service oriented business (3rd economic sector). The traditional concept of distinguishing the primary, secondary and tertiary sector, which is at the basis of the "industry" concept, is meaningful in this context, and the codification into law should follow that line.

Services as public services, tax advice, legal services are not what the patent system was made for. The patent system was made for the traditional industry which distinguishes between industrial manufacturing and engineering of a product. In the software-as-a-product paradigm the software is protected by copyright and licensed as a 'product'. Software copyright protects our software against unauthorized copying while it could be insufficient for the traditional industry to prevent counterfeiting of its products.

Filters: industrial

In international substantive patent law, industrial applicability (often referred to as industrial application) is a fundamental requirement for the patentability of an invention. According to Art 27 TRIPs, "inventions in all fields of technology" are patentable, provided they .. are "susceptible of industrial application". The claim of universality of the patent system is limited only by three terms, among them "industry". This necessitates better definitions of these three terms, in positive and negative ways if possible. The term is important to draw the line between fields for which patent law was designed and other fields that are not covered by patents.

Dogmatic erosion

From the Anglo-Saxon legal sphere the weaker requirement of a utility requirement was advocated as a corresponding legal concept. However, the legal history of the industrial applicability requirement shows that the requirement was applied without any conditions for the utility of the invention. Utility and industrial applicability of an invention are two distinct legal concepts. It is important to consider both of these filters.

Traditional continental meaning

The concept of "industrial application" is far-reaching and includes also the agricultural sector. In the European Patent Convention Art 57 we find that tradition codified. Also in the Strassbourg Convention of 1963.

Article 57 Industrial application
An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

The Paris Convention Article 1 defines the broader term industrial property which was used by case law to expand the criteria to commerce as a whole:

(3) Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.

Anthony Howard, Commission responsible for the EU software patents directive proposal, made clear that the requirement has been widely watered down by case law:

Industrial application is indeed a formal and strict requirement of patent law. In order to be patentable an invention needs to be susceptible of industrial application.

But in practice, this has been interpreted in a manner which has not resulted in the rejection of a very large number of applications, in fact rarely used to exclude inventions that are clearly technical and inventive in character.

It's normally interpreted by the patent office, and by the courts in the member states, as meaning that it is susceptible to be used in a way, if we like, if I can put it like this, which, in a way which makes money. Which can be used in some sort of business application.

So {industrial products doesn't, isn't, or} industrial applicability {means, or rather} is not limited to {products,} the manufacture of products that can be held in the hand, for example, we can be thought of in that sense.

Benefits from an renewed definition

Software development is no manufacturing process. It is a service (3rd economic sector). The traditional concept of distinguishing the primary, secondary and tertiary sector, which is at the basis of the "industry" concept, is meaningful in this context, and the codification into law should follow that line. A reinstated industrial application requirement would enable us to also draw the line for other markets in the service sector for which patent law is not desired such as movie plots, business conduct, tax advisory and legal services including patenting.

Further reading

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