From pb@breese.fr Sat, 10 Jun 2000 10:18:48 +0200
Date: Sat, 10 Jun 2000 10:18:48 +0200
From: Pierre BREESE pb@breese.fr
Subject: [Patents] MP3 Licensing Policy
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> phm wrote :

> As I understand this, a method is covered, which can be implemented in software
> as well as hardware.  Such methods are, according to a strict interpretation of
> the existing laws, not enforcable against software implementations (i.e.
> 'software as such').  But the lawcourts do not adhere to this strict
> interpretation.

Sorry, but you are wrong.
Once, you always forgot paragraph 3 of art. 52 CPE. The provisions of paragraph 2
shall exclude patentability of the subject-matter or activities referred to in
that provision only to the extent to which a European patent application or
European patent relates to such subject-matter or activities as such.
Secondly, Art.138 EPC provide that an European patent may only be revoked [by a
court] of a Contracting State, with effect for its territory, on the following
grounds:
(a) if the subject-matter of the European patent is not patentable within the
terms of Articles 52 to 57 ;
(b) if the European patent does not disclose the invention in a manner
sufficiently clear and complete for it to be carried out by a person skilled in
the art; ...

A national law court has no possibility to revoke a European patent on basis of a
local ground, not included in EPC, or on a local reading of the EPC. The law court
has to apply the EPO practice for evaluate the validity of a claim concerning a
software invention.

If such a claim has been granted, their is no reason (except of lack of novelty,
inventiveness or incomplete description) that a local court will revoke such
claim.

If a software conduct to the reproduction of the technical steps claimed in a
software patent, this software is a counterfeiting. By the way, I have at least
one example concerning a French decision recognizing the validity of a software
patent.

Best regards

Pierre BREESE
European patent and trademark attorney
www.breese.fr

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<blockquote TYPE=CITE>phm wrote :</blockquote>

<blockquote TYPE=CITE>As I understand this, a method is covered, which
can be implemented in software as well as hardware.&nbsp; Such methods
are, according to a strict interpretation of the existing laws, not enforcable
against software implementations (i.e. 'software as such').&nbsp; But the
lawcourts do not adhere to this strict interpretation.</blockquote>
Sorry, but you are wrong.
<br>Once, you always forgot paragraph 3 of art. 52 CPE. <i><font color="#FF1726">The
provisions of paragraph 2 shall exclude patentability of the subject-matter
or activities referred to in that provision only to the extent to which
a European patent application or European patent relates to such subject-matter
or activities as such</font></i>.
<br>Secondly, Art.138 EPC provide that an <i><font color="#FF144B">European
patent may only be revoked [by a court] of a Contracting State, with effect
for its territory, on the following grounds:</font></i>
<br><i><font color="#FF144B">(a) if the subject-matter of the European
patent is not patentable within the terms of Articles 52 to 57 ;</font></i>
<br><i><font color="#FF144B">(b) if the European patent does not disclose
the invention in a manner sufficiently clear and complete for it to be
carried out by a person skilled in the art</font></i>; ...
<p>A national law court has no possibility to revoke a European patent
on basis of a local ground, not included in EPC, or on a local reading
of the EPC. The law court has to apply the EPO practice for evaluate the
validity of a claim concerning a software invention.
<p>If such a claim has been granted, their is no reason (except of lack
of novelty, inventiveness or incomplete description) that a local court
will revoke such claim.
<p>If a software conduct to the reproduction of the technical steps claimed
in a software patent, this software is a counterfeiting. By the way,
I have at least one example concerning a French decision recognizing the
validity of a software patent.
<p>Best regards
<p>Pierre BREESE
<br>European patent and trademark attorney
<br>www.breese.fr</html>

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