Negotiations for the GATT (General Agreement on Tariffs and Trade) are continuing based on a working draft proposed in December as a compromise by the head of GATT. The draft would require all countries that accept the agreement to have patents that cover software techniques. It would also rule out all the ideas so far proposed to protect software from patents or make the patent system bearable for software developers. The draft agreement covers all aspects of international trade, and it will be presented as a package deal. This will place each country under pressure to accept the patent requirements in order to get the benefit of the agreement on other unrelated issues. No country will be able to consider patent policy on its merits any longer. The US administration is responsible for negotiating the agreement and has pressed hard for these very provisions. It appears that some European countries, when agreeing to these US demands, did not realize that they would likely require those countries to have software patents like the US. They may have made a bad mistake. The text of the draft is hundreds of pages long. Here are the pertinent sections. DRAFT FINAL ACT EMBODYING THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS dated 20 December 1991, Part II of the AGREEMENT ON TRADE-RELATED ASPECTS ON INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE IN COUNTERFEIT GOODS (Annex III) [We have included everything that deals with what kinds of things can be patented, and what kind of monopoly the patent creates.] SECTION 5: PATENTS Article 27: Patentable Subject Matter 1. Subject to the provisions of paragraphs 2 and 3 below, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.1 Subject to paragraph 4 of Article 65 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. [No one can deny that software is an area of technology. So this seems to leave no way to exclude "software-related inventions" from patenting.] [Article 65 provides for transition periods for developing countries and former communist countries.] 2. PARTIES may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by domestic law. 3. PARTIES may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, PARTIES shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after entry into force of this Agreement. [This seems to leave no way open to exclude software patents. Beyond that, it mandates an extreme position on patent policy in general, leaving legislators no flexibility to determine when and where it is beneficial to have patents.] Article 28: Rights Conferred 1. A patent shall confer on its owner the following exclusive rights: (a) where the subject matter of a patent is a product, to prevent third parties not having his consent from the acts of: making, using, offering for sale, selling, or importing2 for these purposes that product; (b) where the subject matter of a patent is a process, to prevent third parties not having his consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process. 2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts. [There goes any possibility of general mandatory licensing schemes, regardless of the details.] Article 29: Conditions on Patent Applicants 1. PARTIES shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application. 2. PARTIES may require an applicant for a patent to provide information concerning his corresponding foreign applications and grants. Article 30: Exceptions to Rights Conferred PARTIES may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. [This would seem to rule out making an exception for software in the scope of patents. Even an exception for certain cases would be ruled out, if the software for which the exception is made would be used widely, because the patent holder would always be able to claim to have "lost" signifigantly.] Article 31: Other Use Without Authorisation of the Right Holder Where the law of a PARTY allows for other use3 of the subject matter of a patent without the authorisation of the right holder, including use by the government or third parties authorised by the government, the following provisions shall be respected: (a) authorisation of such use shall be considered on its individual merits; (b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorisation from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of tiem. This requirement may be waived by a PARTY in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly; (c) the scope and duration of such use shall be limited to the purpose for which it was authorised; (d) such use shall be non-exclusive; (e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use; (f) any such use shall be authorised predominantly for the supply of the domestic market of the PARTY authorising such use; (g) authorisation for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorised, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances; (h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorisation; [Any exception that directly benefits the public would necessarily involve widespread use, which would lead the patent holder to claim to have "lost" a large sum. Since it would be beyond the means of the government to pay that sum very often, exceptions would be very rare.] (i) the legal validity of any decision relating to the authorisation of such use shall be subject to judicial review or other independent review by a distinct higher authority in that PARTY; (j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that PARTY; (k) PARTIES are not obliged to apply the conditions set forth in sub-paragraphs (b) and (f) above where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorisation if and when the conditions which led to such authorisation are likely to recur; (l) where such use is authorised to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent"), the following additional conditions shall apply: (i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent; (ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and (iii) the use authorised in respect of the first patent shall be non-assignable except with the assignment of the second patent. Article 32: Revocation/Forfeiture An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available. Article 33: Term of Protection The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.4 [There goes the idea of making patents for software last for a term commensurate with the rate of progress.] Article 34: Process Patents: Burden of Proof 1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in Article 28.1(b), if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, PARTIES shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process: (a) if the product obtained by the patented process is new; (b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. [In other words, the game is stacked against the defendant.] 2. Any PARTY shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in sub-paragraph (a) is fulfilled or only if the condition referred to in sub-paragraph (b) is fulfilled. 3. In the adduction of proof to the contrary, the legitimate interests of the defendant in protecting his manufacturing and business secrets shall be taken into account. ---------- 1For the purposes of this Article, the terms "inventive step" and "capable of industrial application" may be deemed by a PARTY to be synonymous with the terms "non-obvious" and "useful" respectively. 2This right, like all other rights conferred under this Agreement in respect of the use, sale, importation or other distribution of goods, is subject to the provisions of Article 6 above. 3"Other use" refers to use other than that allowed under Article 30. 4It is understood that those PARTIES which do not have a system of original grant may provide that the term of protection shall be computed from the filing date in the system of original grant. [These sections pertain to copyright and design copyright.] SECTION 1: COPYRIGHT AND RELATED RIGHTS Article 9: Relation to Berne Convention 1. PARTIES shall comply with Articles 1-21 and the Appendix of the Berne Convention (1971). However, PARTIES shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom. 2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. Article 10: Computer Programs and Compilations of Data 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). 2. Compilations of data or other material, whether in machien readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the date or material itself. Article 11: Rental Rights In respect of at least computer programs and cinematographic works, a PARTY shall provide authors and their successors in title the right to authorise or to prohibit the commercial rental to the public of originals or copies of their copyright works. A PARTY shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that PARTY on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental. Article 12: Term of Protection Whenever the term of protection of a work, other than a photographic work or a work on applied art, is calculated on a basis other that the life of a natural person, such term shall be no less than fifty years from the end of the calendar year of authorised publication, or, failing such authorised publication within fifty years from the making of the work, fifty years from the end of the calendar year of making. [This would forbid shortening the term of copyright on software to period commensurate with the rate of obsolescence. However, other treaties already prohibit this.] Article 13: Limitations and Exceptions PARTIES shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. [This does seem to permit a country to legislate that copyright does not extend to interfaces.] Article 14: Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasts 1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation: the broadcasting by wireless means and the communication to the public of their live performance. 2. Producers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms. 3. Broadcasting organisations shall have the right to prohibit the following acts when undertaken without their authorisation: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where PARTIES do not grant such rights to broadcasting organisations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971). [Currently, it is lawful in the US to record a broadcast. This would prohibit such recording.] 4. The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in domestic law. If, on the date of signature of this Agreement, a PARTY has in force a system of equitable remuneration of right holders, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders. 5. The term of the protecction available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of fifty years computed from the end of the calender year in which the fixation was made or the performance or broadcast took place. The term of protection granted pursuant to paragraph 3 above shall last for at least twenty years from the end of the calendar year in which the broadcast took place. 6. Any PARTY to this Agreement may, in relation to the rights conferred under paragraphs 1-3 above, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms. SECTION 4: INDUSTRIAL DESIGNS [The US currently does not have design copyrights. Congress is currently considering bills to establish them. They face opposition from organizations ranging from insurance companies to Consumer Reports, because they would greatly increase the cost of automobile repair. If the agreement is adopted in this form, it would mandate the passage of such laws. The US bills now pending limit the cost somewhat by excluding automobile glass from coverage; however, the language of the agreement does not seem to permit a blanket exception for any particular kind of product.] Article 25: Requirements for Protection 1. PARTIES shall provide for the protection of independently created industrial designs that are new or original. PARTIES may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. PARTIES may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations. 2. Each PARTY shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. PARTIES shall be free to meet this obligation through industrial design law or through copyright. Article 26: Protection 1. The owner of a protected industrial design shall have the right to prevent third parties not having his consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes. 2. PARTIES may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties. 3. The duration of protection available shall amount to at least ten years.