From pb@breese.fr  Tue Oct 10 21:33:46 2000
Date: Tue, 10 Oct 2000 23:33:46 +0200
From: Pierre BREESE pb@breese.fr
Subject: [Patents] Some remarks on Vol 1 #284

Jean-Paul Smets wrote :
>   
> Also, the sentence "software as such can not be patented" is an invention of the EPO and patent attorneys 

???Article 52 (3) says :
(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.

> The Munich Convention clearly states that (1) software can not be patented (2) inventions containing
> software can be patented. 

This is what JPS states. But not what Munich Convention states.


> Actually, this notion of "software as such" and "software not as such"
> is completely ridiculous.

No, it's the exact wording of EPC !!!

> ..more than 13.000 patents on invention which steps involve the use of software. That's fine in theory. 

No, it's a reality, even if you don't like that your theory is in
contradiction with the reality.


>  because the Law  (EPC + internal Law) 

"International law" doesn't exist. Only National law has to be
considered in case of patent conflict. And national law has to consider
the validity of patent issued from European patent in regard of EPC criteria's.

Art. 138 : A European patent may only be revoked under the law 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;


> You can not claim that "everyone should be free to choose its tactics"
> if the tactics from one person involves creating trouble to others or
> involves others to follow the same tactics. `

The trouble comes from people doing "business" without taking in account
prior IP rights of competitors...

Pierre BREESE
European Patent Attorney




