[Patents] EPO Paper on patenting business methods

[PILCH Hartmut phm@a2e.de]

Greg Aharonian reports

  A press-release about "Patentability of methods of doing business"
  of the EPO can be found at

    http://www.european-patent-office.org/news/pressrel/2000_08_18_e.htm

and  comments very nicely:

 If you are not a patent lawyer, don't read the press release, it will
 cause temporary brain meltdown.  I quote an excerpt (is [and whatever
 "is" means] President Clinton moonlighting by writing stuff for EPO?):

    The EPC does not give a definition of the term "invention".
    It does, however, include a list of subject-matter and activities
    which are deemed not to be inventions. According to Article 52(2) EPC,
    methods for doing business, mathematical methods, presentations of
    information and programs for computers shall not be regarded as
    inventions.  However, Article 52(3) EPC stipulates that this provision
    shall exclude patentability of the subject-matter or activities
    referred to only to the extent to which a European patent application
    relates to such subject-matter or activities AS SUCH.

 In short, these things aren't patentable except where they are.

    It follows that, although methods for doing business, programs for
    computers, etc., are AS SUCH explicitly excluded from patentability,
    a product or a method which is of a technical character may be
    patentable, even if the claimed subject-matter defines or at least
    involves a business method, a computer program, etc.

 EPO officials probably wrote this at a retreat in Nicaea.

In fact, the EPO has ever since 1986 been distinguishing between a
"computer program as such" and a "computer program with a technical
effect".  According to EPC Art 52, however, computer programs are not
patentable.  The EPC implies no distinction between "program as such" and
"program" or "business method as such" and "business method".  Patents may
simply not be granted on programs or business methods. 

If Art 52 is to be modified, (3) should be deleted, because it has only
served for the EPO to engage in brainmelting activities.

Currently, the German Federal Patent Court also interprets the EPC in this
way.  It does not accept the "computer program as such" sophistry and has
rejected a software patent this month.  But the Federal High Court
has been melted down last year and now engages in the same kind of
sophistry.  It also has a reputation of overturning the verdicts of the
Federal Patent Court and promoting patent inflation.

-phm