[Patents] MP3 Licensing Policy

[Pierre BREESE pb@breese.fr]

> 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. ìThe 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.î
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
ìsoftware patentî, this software is a counterfeiting. By the way, I have at 
least
one example concerning a French decision recognizing the validity of a 
ìsoftware
patentî.

Best regards

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



> 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