PAVING THE WAY FOR PATENTING OF COMPUTER PROGRAMS IN UKRAINE
There are indeed obstacles to patenting computer programs in Ukraine. Nobody denies this. The only question is what they are, and whether they are manageable or not. Just for the sake of starting a discussion, I will try to outline those that seem to be the most important, from low-level to high-level, and consider some ways that would make it possible to overcome these barriers. The Ukrainian Patent Offi ce believes that computer programs are not inventions, so it is impossible to protect computer programs through patents, patents on computer programs are not allowed, and computer programs have no patent protection in Ukraine. First, the Ukrainian Patent Offi ce does not regard computer programs per se as inventions because they lack a technical nature, are not directed to solving technical problems and accomplishing technical results, and are therefore beyond the technological area. I’m not in a position now to debate the technical nature of computer programs, but it appears to me bizarre that a computer program implementing asymptotically a better sort algorithm or search algorithm (or both) that was unknown before could not be considered to be solving a technical problem and accomplishing a technical result, and thus be beyond the technological area. But foremost, the Ukrainian Patent Office has no notion of how computer programs should be examined for adherence to the criteria of novelty, utility and inventiveness. Moreover, it seems to be the genuine reason for the Ukrainian Patent Offi ce denying the patentability of computer programs. That is indeed a major problem, and what exactly the solution here could be is unclear. It appears to be the central problem of patent protection of computer programs. The aforementioned problems are reflected in the internal procedures of the Ukrainian Patent Offi ce, having placed computer programs outside the scope of patenting. Further, the regulations do not recognize computer programs per se as inventions. Just like that. Out of the blue. Interestingly, the articles of the regulations before and a er this particular one contain references to the provisions of the statute, whereas this one does not. Finally, the statute. Let us see... The statute does not exclude computer programs from patent protection. In summary, there exist barriers at the levels of understanding of computer programs, technical matters in examining applications, internal procedures, and regulations, but there is no barrier at the statutory level. As for taking down these barriers, we need to take into account some specifics. The Ukrainian Patent Offi ce is not yet a full- cycle patent offi ce. The office is just an expert institution examining applications while conducting formal and patentability expertise. It is the Ministry of Economic Development and Trade that shapes and implements public policy in the area of intellectual property. With that in mind, the Ukrainian Patent Office should improve the situation at the understanding and technical levels first. That said, it will not be without help. The technical community will readily offer assistance, while the general public will definitely prevent the latter from turning the situation to its own benefi t at the expense of public interest. What’s important is that the Ukrainian Patent Offi ce should be success- oriented, while finding a solution to how computer programs and applications could be examined, instead of just insisting that the obstacles cannot be overcome and that computer programs are not patentable. The Ukrainian Patent Offi ce should then amend its internal procedures. Having that done, the Ministry of Economic Development and Trade could then easily make amendments at the level of regulations, thereby removing the last remaining obstacle. As we see, the obstacles to patenting computer programs are known, and eliminating them is doable. But it definitely won’t be doable until the Ukrainian Patent Offi ce is willing, or forced, to do so.