From phm@a2e.de Sat, 10 Jun 2000 08:26:02 +0200 (CEST)
Date: Sat, 10 Jun 2000 08:26:02 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] MP3 Licensing Policy

> > 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 interpret=
ation of
> > the existing laws, not enforcable against software implementations (i.e=
=2E
> > 'software as such').  But the lawcourts do not adhere to this strict
> > interpretation.
>=20
> Sorry, but you are wrong.
> Once, you always forgot paragraph 3 of art. 52 CPE.=20

I did write 'as such', didn't I?
So how can I have forgotten 52(3) ?

> 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.=EE

exactly.  And a software implementation of MP3 is a 'computer program as
such', while a hardware implentation would be a 'hardware system
comprising a computer program'.  The former can, according to the law,
not be claimed by a patent, while the latter can.

> 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:

Interesting.  I hear that these grounds will be narrowed even more
with the current reform.  But this wasn't our topic.  Or where did we
discuss about the relations between contracting states and the EPO?

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

I know that lawcourts these days decide in this manner.  This is because
they have created their own caselaw for themselves, which has gradually
deviated from the EPC.

Thanks for participating in the discussion.  I am sure it will greatly
improve by having some IP specialists with contrasting opinions in here.

-phm





