PAVING THE WAY FOR PATENT­ING OF COM­PUTER PRO­GRAMS IN UKRAINE

Kyiv Post Legal Quarterly - - News - Artem Tara­nowski Part­ner at Golo­van and Part­ners Law Firm

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.

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