Finland: Recent IP Developments In Finland

The Ministry of Trade and Industry is currently preparing a national comment to the EU Proposal for a Directive on the patentability of computer-implemented inventions. Invited by the Ministry to comment, the National Board of Patents and Registration, which grants patents in Finland, has stated that the proposed Directive will not necessitate any changes to the Board’s current practice regarding computer programs, which is that computer programs are not patentable "as such", only as part of an invention that makes a technical contribution to the state of the art.

The Proposal for a Directive on the patentability of computer-implemented inventions (COM (2002) 92) was presented by the European Commission on 20 February 2002. According to the Commission, the current legal situation in Europe regarding patent protection in the field of computer-implemented inventions is ambiguous and lacks legal certainty. Although the EPC and national patent laws exclude computer programs "as such" from patentability, the EPO and some national patent offices have in practice granted patents for computer-related inventions, often in core areas of information technology. The EPO and some national patent offices have allowed program product claims, whereas other patent offices have not. Thus, a computer-related invention may be protected in some Member States but not in others. According to the Commission, this may have direct and negative consequences for the proper functioning of the internal market.

The purpose of the proposed Directive is thus to harmonise the EU Member States’ national patent laws. The proposal does not follow the European Patent Office’s (EPO) practice of allowing patent claims for computer programs claimed on their own or on a carrier. Rather, the Directive would codify the requirement for a technical contribution: in order to be patentable, a computer-implemented invention must have a "technical character" and make a contribution to the state of the art in a technical field which is not obvious to a person skilled in the art. All programs meet the requirement of technical character when they are run in or incorporated into a computer (or other apparatus). However, contrary to the EPO’s current practice, a computer program on its own or on a carrier would not have such "technical character" and consequently would not be patentable.

The requirement of technical contribution is also thought to exclude most business methods from patentability. However, a business method could still be patentable if it makes a non-obvious contribution to the state of the art in a technical field.

In Finland, the current practice of the National Board of Patents and Registration is to not allow product patent claims for computer programs as such or on a carrier. However, the Board has allowed computer-related inventions to be claimed as products in the form of programmed computers or other apparatus, or as processes carried out by such apparatus. The Board’s interpretation of the proposed Directive is that it does not in its current form necessitate any changes to the Board’s practice with regard to computer-related inventions.

Finland has implemented the EU Directive on the Legal Protection of Designs (98/71/EC) by amending the Design Protection Act (221/1971). The amended legislation entered into force on 1 August 2002. Design rights subsist in industrial designs involving functional elements, aesthetic designs and ornaments that qualify as creative, novel and essentially different from existing designs. The design's registration with the National Board of Patents and Registration is a precondition for design protection.

The amended legislation expands the protection afforded to industrial designs quite significantly. First, the term of protection is extended to a maximum 25 years from the earlier 15. Second, design protection now covers also parts of products (e.g., the neck of a bottle), where earlier legislation only afforded protection to the appearance of a product in its entirety. Designs of component parts of complex products (products that are composed of multiple replaceable components), are protected inasmuch as such components remain visible during normal use of the complex product, and fulfill the requirements of novelty and individual character. Excluded from protection are designs that are solely dictated by their technical function, as well as designs necessary to mechanically connect products or components. However, under what is known as the "Lego-exception", design rights may subsist in designs serving the purpose of allowing multiple assembly or connection of mutually interchangeable products within a modular system, provided that such designs otherwise meet the requirements for registration.

Following the adoption by the Council of Ministers of the Regulation on Community Designs, which is directly applicable law in each EU Member State, on 6 March 2002, Finland also affords protection to what are known as "Registered Community Designs" "Unregistered Community Designs". Registered Community design protection is obtained by registration of the design with the with the EU’s Office for Harmonisation in the Internal Market (OHIM) in Alicante. Unregistered Community design protection can be obtained through establishment, however the term of protection is only 3 years.

This article first appeared in the publication Focus Europe published by American Lawyer Media. For further details, please refer to http://www.americanlawyer.com/