From simw@cwcom.net Wed, 01 Sep 1999 08:23:05 +0100
Date: Wed, 01 Sep 1999 08:23:05 +0100
From: simeon williamson simw@cwcom.net
Subject: [Patents] Re: Just trying to clear-up some possible miscomprehensions

> Can anyone tell me if this LZW patent is registred i Europe?
> I mean, if Europe previus didn't accept software patents,
> then can this patent not be relevant in Europe.

Despite the "unfortunate" wording in the European Patent Convention
(Article 52(2)) patents for software have been available in Europe for
quite some time.  For most of this period you couldn't actually have a
claim directed to "a computer program comprising ..." but if you
submitted a patent in that form the Examiner at the EPO dealing with the
case would have suggested appropriate alternative wording to overcome
the ban with a claim which would have been just as effective as one
starting "a computer program comprising ..."  In view of a recent
decision on an IBM case, an EPO Board of Appeal has finally said this is
stupid and now the EPO will grant patents directed to a computer program
provided the computer program provides a "technical" as opposed to say
an artistic, presentational, business or mathematical effect.  The real
issue about the Green paper on the Community patent and the patent
system in Europe (I assume this is the paper everyone is talking about)
is whether we should amend the EPC to prevent people being confused by
the wording of Article 54(2) which at first sight looks like it should
prevent software patents from being granted in Europe even though it
doesn't.
> 
> Another thing. It is legal for anybody to take a patent and
> build a thing at home for privat use only. In that case
> it should be legal for me to implement LZW and use it
> on my own homepage. So: is it illegal to distribute
> source code which use an algorithme?

It's a defence against infringement of a patent to say that the
infringement was done for private and non-commercial reasons.  If you
distribute source code for money, this is commercial - if you give it
away, this could be commercial or not depending on the circumstances.

> It is sure illegal to sell and distribute binaries but
> the source code is 'just' an example of how to implement it.

The source code can infringe a patent just as well as the binary.




