From phm@a2e.de  Thu Nov 30 22:29:36 2000
Date: Thu, 30 Nov 2000 23:29:36 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Re: Press release : Statement by Dr Roland Grossenbach

> http://www.european-patent-office.org/news/pressrel/2000_11_29_e.htm
> 
>    Statement by Dr Roland Grossenbacher, Chairman of the Administrative
>    Council of the European Patent Organisation
> 
>    F / D
>    
>    Munich, 29 November 2000, 12.30 hrs
>    European Patent Office --
    
...
    
>    First, I should point out that the Conference agreed not to delete
>    computer programs from the list of non-patentable inventions. For the
>    meantime, the existing legal position therefore remains unchanged. The
>    Conference's decision took account of the process of consultation on
>    the future of legal protection in this field, and in no way challenges
>    the existing practice of the Office and its boards of appeal, or that
>    of national patent authorities and courts. As before,
>    computer-implemented inventions can be patented if they involve a new
>    and inventive technical contribution to the state of the art.
>    Technical solutions for use in data processing or for carrying out
>    methods of doing business therefore remain patentable.

He should have said "at the EPO", since the diverging practice of national
patent authorities and courts remains unchallenged also.
    
>    This follows from the concept of invention itself, which draws a clear
>    distinction between technical solutions and non-technical methods. On
>    this basis, patents cannot be granted for computer programs or
>    business methods which are not of a technical nature.

>From the named concept of invention it follows that computer programs are
not patentable.
    
>    In substantive European patent law, the Conference clarified and
>    strengthened the extent of protection conferred by European patents by
>    expressly including so-called "equivalents".

This sounds very dangerous and may be a reason not to ratify the proposal.
Any strengthening of the extent of protection is not permissible nowadays
since it is clear that the patent system has been extended way too far
already, not only in the realm of software.  Equivalence is a principle
that can also be extended to the infinite and is causing a lot of harm
today already.  It is also a principle which is not permissible in Japan
and at other patent offices.  It is a hallmark of EPO expansionism.
    
>    At the institutional level, the Conference advocated bringing the
>    European Patent Organisation more firmly within the political
>    responsibility of the member states and decided to insert a provision
>    in the Convention stipulating that a regular conference of ministers
>    be held. It also decided to authorise the Administrative Council to
>    adapt the EPC to international treaties and European Community
>    legislation, albeit with far stricter limitations than were originally
>    envisaged.

This sounds like good news.  It is now up to us to bring pressure to bear
on our government ministers.
    
>    The Conference has also created the legal basis for special agreements
>    between the contracting states concerning the translation of European
>    patents and the introduction of a central court system for the
>    enforcement of European patents, issues which are also of importance
>    for the Community patent proposed by the European Commission.

This again is very dangerous.
There should be no European patent court, because such a patent court will
not be subject to any constitution.   It will most likely be as
unaccountable as the EPO's Technical Board of Appeal, which is the chief
culprit of the patent-inflationary law-bending activities since 1986.
Independence of national courts provides a check and balance against such
law bending.
    
>    With this revision of the Convention, the 20 member states of the EPO
>    have given the go-ahead for further consolidation of the European
>    patent system. The Conference Resolution which you have before you
>    makes it quite clear that there are a number of outstanding issues of
>    some significance, in particular the protection of computer programs
>    and biotechnology inventions, which require further analysis. The
>    European Patent Organisation has been urged to make preparations for a
>    further Diplomatic Conference. Proposals for further revision might
>    include software patents and the changes required to implement the
>    Community patent without delay.

Proposals should include a clear definition of invention in Article 52
as stated in

	http://swpat.ffii.org/stidi/epue52/

We should adopt that as an official position and campaign for it right
now.

Moreover, I think the basic issues of patentability should be decided in
an interdisciplinary commission of the European Parliament rather than by
the diplomats of the European Patent Organisation aka European Patent
Lobby.
    
>    This Conference has paved the way for further reform of the European
>    patent system. The new provisions it has adopted will not, however,
>    enter into force immediately, as they first have to be ratified by the
>    parliaments of our member states. The Convention as revised at this
>    Conference will therefore probably not have legal effect for another
>    four or five years.

So we might as well ask that nothing be ratified before the next
Diplomatic Conference, since I assume that Mr Grossenbacher wants to
convene such a conference rather soon.  

-phm





