ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/lpf/gatt.text

Text File | 1992-11-03 | 21KB | 437 lines

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 treaty covers all aspects of international trade, and it
will be presented to the US Senate as a package deal.  If an agreement
is reached, almost certainly other parts of it will be quite
advantageous for the US.  The result would be irresistable pressure to
adopt the whole package.

Thus, sweeping changes in US intellectual property law would be forced
upon us and cast in stone, without any consideration by the House of
Representatives, and with no opportunity for the Senate to consider
them individually on their merits.  At the same time, legal policy
which Congress currently has the power to change would become frozen
and unchangeable.

The US administration is responsible for negotiating the treaty and
has pressed hard for these very provisions.  The administration has in
effect found a way to legislate by itself, bypassing Congress.

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 oatented, 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.

[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 forces the US permanently into an extreme position on patent
policy in general, leaving congress 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 treaty 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 treaty
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.