[Patents] disgruntled examiners at EPO

[PILCH Hartmut phm@a2e.de]

> Mr Pilch's comments on French and German law ignore the fact that
> these laws used to differ substantially from European law;  all
> national laws have now changed to bring them into line with EPO
> jurisprudence. The commentaries Mr Pilch cites are old and in the case
> of Germany rely on an extremely old definition of "technizit=E4t" which
> is recognised as being no longer tenable. =20

The BGH definition of technicity (technical character) is very well
tenable and consistent, while EPO jurisprudence has no tenable definitions
for its basic concepts, including such a concept as "additional technical
effect".

The German definition of technicity was finalised in court decisions of
1978-1981, well after the EPC had gone into force.  It was a
systematisation of an implicit definitions still inherent in the patent
tradition of the whole world, including US and Japan.

When the EPC was passed, Germany was one of the countries that were
relatively open to patenting software.  The BGH definitions were a result
of influence from France, Holland, Austria and some other countries that
had a clear anti-swpat viewpoint.  A Paris court judged in 1973 that
anything that could be realised on a universal computer could not be an
invention, even if it had an industrial application (and here
"industrial" really meant industrial aka technical aka use of natural
forces in the production of goods).  The BGH jurisdiction thus may even be
seen as a slight deviation from the EPC in the direction of software
patentability, because it at least acknowledged the possiblity that
computer programs can be a means of implementing inventive uses of natural
forces, which by themselves can be patentable, see ABS decision of 1980.=20

Of course there were people, like Prof. Beier in GRUR 1972 p 214, who
considered that the domain of the non-technical world should perhaps be
opened up to the patent system, because otherwise an area of potential
economic importance would gradually fall out of all IP protection schemes,
if the current borderline (technicity, physical substance) was maintained. =
=20
But even Prof Beier warned that this would mean a general overhaul and
would have to be done by the legislator.  He also mentioned that sui
generis systems might be more appropriate, while at the same time creating
a political problem of worldwide coordination.  Beier expressed
disillusionement at the willingness of politicians to do anything except
reacting to immediate pain.

It has now turned out that the EPO took Beier's agenda into its hands
without consulting the legislation.  This approach seems quite
understandable, given the general disillusionement about politicians. =20
Yet it is illegal and hazardous, because it ruins the foundation of the
patent system while at the same time exposing it to a never-ending public
hostility.  What Beier proposed, was after all only a question.  And the
answer, seen from my hindsight perspective, is that the patent system must
stay in the domain where it originated.

The following scheme could explain, where the home base of the patent
system is:



=09| concept=09=09| implementation
---------------------------------------------
physical| patent=09=09| private property
---------------------------------------------
logical | public property=09| copyright
---------------------------------------------
=09|=09=09=09|

The realm of logical concepts develops best, if it stays free. Public
policy can help, e.g. by subsidizing standardisation efforts and
supporting universities and culture.

The realm of physical implementations is best developped by "free market
economy".  In the realm of logical concepts, capitalism is rather
unproductive and creating property rights makes it even less so by
destroying freedom, including "free market".

In the other two realms, compromise concepts like patent and copyright can
be put to work, if they are designed well enough to benefit the economy.

> In any case, I hope he is not implying that we should all be following
> the German line; avoiding this is one reason the EPO was set up. The
> national judges are also following the EPO - even the BGH shows this
> clearly in its latest decisions, even if unlike the English Patents
> Court and Court of Appeal it doesn't say so xplicitly.

Nobody should be following the EPO.  Instead, the EPO should be following
the law in its finest interpretation by national judges.  The EPO is an
examining authority, while the BGH and the Paris court as well as British
courts are invested with democratic legitimacy derived from the
supervision by a constitutional government.

> As for the EPO as an organisation, it is I am told one of only two
> international NGOs in the history of humanity to make a profit. Most
> of us would be happy if more government departments and NGOs saw their
> function as giving their "customers more value for their money".=20

The EPO is an public servant.  If anybody should get a value from the EPO,
it is the public.  The purpose of a patent office is to strike good deals
with inventors on behalf of the public.  The EPO should be getting
valuable inventions disclosed in return for as little restriction on
public freedom as possible.

But instead, the EPO is fattening itself by imposing broader and broader
restrictions on the public in return for less and less value.  And it even
lobbies the EU and other organisations in order to be allowed to grow even
fatter by restricting the public even more.

The EPO is like an organisation that licenses people to pollute the
environement and collects money for those licenses.  The more the
environment is polluted, the richer the EPO.  And it is even proud of
being of service to polluters.

> As with all other patent offices the EPO is under continual pressure
> to reduce unit costs, no bad thing in my opinion. There is room for
> disagreement as to where the pain threshold is reached at which more
> production means lower quality, but anyone who has dealt with the
> USPTO or JPO will confirm that in comparison there's a long way to go
> yet.

My impression is that the quality standards of the EPO already seem lower
than those of both the USPTO and the JPO.  And the granted claims are
broader.  Moreover, further broadening argumentation schemes such as the
equivalence doctrine make many Japanese patents effectively enforcable
only in Europe.

A study by the Trilateral Commission (Saikine report 24.2) confirms my
impression.

> Which brings me to my final point. The real enemy is not the EPO. The
> EPO largely does what it is told by the national governments and any
> deviations or potential deviations are quickly repaired - witness the
> quick change in the Rules following the EC Biotechnology Directive. If
> the national governments really felt that the EPO was deviating from
> the EPC they would act; that they have not done so, and instead
> national patent offices have quickly come into line with EPO
> juriprudence (in the case of the "data carrier" cases the UKPO did so
> almost instantaneously) speaks volumes.

Both right and wrong.

The problem is that
- national governments don't care about the patent system and act only
  when they feel pain in their neck
- normal decisions in the EPO administrative council are taken by people
  from national patent offices and masterminded from within the EPO

Yet it is true that if we want to change things, we must make the
governments care.  It is ultimately their fault and their duty.  But that
is almost impossible to achieve.  The German Ministery of Justice has just
a few persons trying to catch up with the initiatives of the EPO and
unable to develop any of their own.  Some of these are hoping for a career
at the EPO.
 =20
Since governments don't care, I would find it all the more important that
the EPO is really reduced to examination and that jurisdiction is left at
the national level.  At least the national judges often do care, as can be
shown by the fine jurisdiction developped at some of the national courts.
It is important that this jurisdiction is independent and constitutionally
controlled.

Examination could eventually be cut down also, as demonstrated by the
French patent office.
=20
> There is soon to be, we are told, an EC Software Directive. IMHO that
> is where you should be directing your energies. Noone seems to know
> what it will contain, but we know the vote on amendment of Article
> 52(2) was so close it not because people were convinced by the
> arguments but because the big countries want to wait for the
> directive.

Thanks, this is also the impression I got.  The reason is again that the
governments don't have the ressources to really care about the issue. =20
But on the other hand side the Commission's undecidedness seems to be
related to a widespread feeling of uneasiness within the governments of
the major countries, and perhaps also with disillusionment about following
the leadership of the EPO.  But I wonder whether the Commission itself can
have the will and the ressources to be more active and less reactive than
national governments have so far been.  It is an opportunity for them.

-phm=20