[Patents] compulsory-licensing

[PILCH Hartmut phm@a2e.de]

> > Lawcourts are bound to the law and nothing else. They are not entitled =
to
> > judge whether the law is appropriate. They can develop the details of
> > applying the law, but they can not change the rules that are laid down =
in
> > the law.
=20
> Your opinion is based on art.52.2) without seriously taking in account
> art 52.3. Art 52.2 is not more important then 52.3, both alinea must
> be undestood together, and not in a separate way with a minor and
> anecdotal 52.3 that would not, in your opinion, having the same weight
> as 52.2.

No.  I gave an interpretation of 52.3, which is in line with valid
commentaries of 1988.  It is also in line with the EPO's own
publications.  The Basic Proposal states that Art 52.2c has not prevented
the EPO from granting patents on computer programs and is therefore
obsolete.
The EPO can't have its cake and eat it.
Either Art 52.2 is obsolete and must be removed, or it isn't.
If it is, the EPO has violated the law.=20
If it isn't, then there is no urgent need to change the law.
The Greenpaper and other documents from the EPO environment however give
economic reasons ("the economic importance of software") for changing the
law.
You, Mr. Breese, yourself have written that the current law can only be
maintained "at the price of intellectual contorsions".
What you call "intellectual contorsions" is what I call "law-bending".  =20
=20
> Such misinformation shows the necessity of improving the legibility of
> the law, not in changing them, but in avoiding false interpretation as
> Aful=92s perception.

The false interpretation is on your and the EPO's part.
My interpretation is supported by commentaries and by decisions from
national courts, such as BPatG of August 2000.
=20
> You can=92t reasonably contend that EPC granted 13,000 patents contradict=
orily to the
> law, without any reaction of the board,=20

Yes I can.  The board has no motivation to react, because it is in the
board's interest to bend the law.  Moreover, the EPO is an
extraterrestrial organisation that can break the law without risk.

> or that the international patent
> classification comprises many items as H04L-001 (the encryption system us=
ing shift
> registers or memories for blockwise coding,=20

The IPC has to account for international reality, which includes patents
as they are, no matter whether legal or illegal, whether European or
American.

-phm