[Patents] Re:as such or not as such, that is the question...

[Pierre BREESE pb@breese.fr]

     PILCH Hartmut wrote :

     > 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.

1 - As you know, EPO T 1173/97 decision, of July 01,1998 confirms that a claim
relating to a ìcomputer programî can be valid.
2 - Such a claim a software implementation that reproduce all the technical
characteristic of such a claim is a counterfeiting
3 - Your understanding seems to be :
*Art 52.2 and 3 provides that [Öshall not be regarded as inventions Ö 
programs for
computersÖ ìas suchî].
*So, a granted European patent canít be opposed to a program for computers 
"as such".

4 - In my opinion, you make a mistake. Art 52. relates to the grant and the 
validity
of a patent.
*If the patent is granted, you can fight the validity, including on bases of 
art.
52.2 and 3.
*But the law court has to apply EPC and EPO case law for the discussion of the
validity of a granted patent relating to a computer program.
*If the claim relating to a "computer program [see T1173/97]" is considered 
as valid,
this claim as written [even in the field of computer program] can be opposed 
to a
corresponding embodiment, even if this embodiment is a software.

5 - The same situation exist in the field of playing games. Art 52 provides 
also
[Öshall not be regarded as inventions ..playing games Öîas suchî...].
But this doesnít exclude the possibility of claiming and patenting a playing 
game.
Rubikís cube is a playing game. This game presents an innovative articulation 
system.
So, this Rubik's cube is patented even if it is a game, and the patent can be 
opposed
to games with the claimed characteristics.

For this reasons, my opinion is that MP3 patents may be enforced including 
for MP3
softwares, for example for the watermark extractor system used by MP3.

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

Thank you for this comment. I'm sincerely persuaded of the necessity of a 
dialog
between ìfree software communityî and people involved in the ìpatent 
approachî.  I
agree with some of your positions, but in my practice, I consider that 
patents are a
reality, even for the field of software, and that their would be hazardous to 
let my
clients [must of them are start-ip] expecting that patents donít apply for 
computer
program in Europe.


Best regards

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

PILCH Hartmut wrote :

> 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.

1 - As you know, EPO T 1173/97 decision, of July 01,1998 confirms that
a claim relating to a “computer program” can be valid.
2 - Such a claim a software implementation that reproduce all the technical
characteristic of such a claim is a counterfeiting
3 - Your understanding seems to be :

Art 52.2 and 3 provides that […shall not be regarded as inventions … programs for computers… “as such”].

So, a granted European patent can’t be opposed to a program for computers "as such".

4 - In my opinion, you make a mistake. Art 52. relates to the grant and the validity of a patent.

If the patent is granted, you can fight the validity, including on bases of art. 52.2 and 3.

But the law court has to apply EPC and EPO case law for the discussion of the validity of a granted patent relating to a computer program.

If the claim relating to a "computer program [see T1173/97]" is considered as valid, this claim as written [even in the field of computer program] can be opposed to a corresponding embodiment, even if this embodiment is a software.

5 - The same situation exist in the field of playing games. Art 52 provides also […shall not be regarded as inventions ..playing games …”as such”...].
But this doesn’t exclude the possibility of claiming and patenting a playing game. Rubik’s cube is a playing game. This game presents an innovative articulation system. So, this Rubik's cube is patented even if it is a game, and the patent can be opposed to games with the claimed characteristics.

For this reasons, my opinion is that MP3 patents may be enforced including for MP3 softwares, for example for the watermark extractor system used by MP3.

>  
> Thanks for participating in the discussion.  I am sure it will
> greatly
> improve by having some IP specialists with contrasting opinions in
> here.
Thank you for this comment. I'm sincerely persuaded of the necessity of
a dialog between “free software community” and people involved in the “patent
approach”.  I agree with some of your positions, but in my practice,
I consider that patents are a reality, even for the field of software,
and that their would be hazardous to let my clients [must of them are start-ip]
expecting that patents don’t apply for computer program in Europe.

Best regards

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