[Patents] Re: Press release about the BT patent on hyperlinks

[PILCH Hartmut phm@a2e.de]

> >>I am beginning to think that the way to decide the scope of
> >>patentablility is for the law to lay down what things can infringe on a
> >>patent, rather than which patents can be granted.
> >
> >That is the same.
> 
> I don't think it is, since infringement proceedings go to a law court,
> which will probably interpret the law in a sensible manner, rather than
> a patent court, which will probably produce a 50-page document
> explaining that X is not X 'as such'.

At least in Germany, there is a dual system, and the law court system
(BGH) produces just as lengthy sophistry as the patent court system
(BPatG).  It is the BGH that recently ruled that e-commerce methods can be
patented through software (decision on "vending machine" of July 1999)

What court handles the case doens't depend on how the basic law is
written.
 
> >The EPC is actually quite clear:  a patent cannot be granted on a computer
> >program (i.e. a computer program cannot infringe on a patent), but it can
> >be granted on a non-program that contains a program.
> >
> >This would mean that MP3 software cannot be patented (= claimed = infringe
> >on a patent claim), but MP3 hardware could.
> 
> What about hardware which runs a software program to decode an MP3?  If
> this infringes on a claim, then in effect the claim covers software.

Taken to an extreme, perhaps you could, under the EPC regime as I
interpret it, sue someone for selling hardware bundled with MP3 software.  
But you could certainly not sue anyone for distributing the MP3 software
in isolation.

However you set the borderline, there is enough reason for some legal
systematicians to be unsatisfied.  And lawyers will be unsatisfied that
the monopoly of their customer can be "circumvented".

Still the EPC borderline that bans software as such from being patented
allows for one of the cleanest and economically most sensibles approaches
possible.

If we now let it be diluted by a new EU guideline, we will get even more
muddled legislation which will in a short time lead to further patent
inflation.

An article which I quoted here recently (by Daniele Schiuma) also makes it
clear that, contrary to what the EC internal market division and the
patent office people say, the EU guideline will substantially expand the
practise of software patenting, extending the system to spheres which even
today under the bent law it doesn't yet reach.

Btw, in a telephone conversation today Mr. Mueller in Bruxelles repeated
his point of view that the EC by its directive is just clarifying the
situation and not changing anything.  He is speaking against his better
knowledge.

-phm