[Patents] How to change the European Patent Convention

[JHalbersztadt halber@idea.net.pl]

PILCH Hartmut wrote:

>
> We'd need a sample of random EP patents to show the results of this
> approach, e.g. numbers 823100-823200.  I might want to do that.  I don't
> think the result would be so huge.  Probably the above rule would
> eliminate a large portion of the trivial patents and of those with abusive
> function claims within that section but leave almost all the pharmacy,
> chemistry and even bio patents. If we want trivial mechanical patents, we
> can of course finetune my rule so as to allow them.  Perhaps for a
> transition period or so, because I couldn't think of good reasons for
> allowing them on the long term.  In the long run anything that does not
> provide a new way of directly using natural forces with a physical effect
> validatable by experimentation should be taken out of the patent system
> and, where necessary, put into some sui generis system.

In my opinion your rule doesn't eliminate trivial patents. It eliminates
complex technologies where some inventive ideas are very far from direct
physical effect. Statistical studies you propose are welcome. However, I am
afraid that sample proposed by you isn't big enough. I would suggest that we
should make a start with case studies. They would help explain the subject
of the research.
Look first please at Karmarkar algorithm. There is the US patent  and the EP
patent. It is difficult them to compare. US-4744028 has more than 20
independent claims, EP-248812 has only one. In both you have a cover-up. But
this cover-up is narrowing the claims. What do you think about the phrase
"allocating industrial or technical resources" in the EP claim? Do you
reject that it is a solution to the telephone routing problem?
>
> My "going back to the past" has the following effects
>
> - the patent system is cut back to its legitimate core
> - although TRIPS 27 is strictly observed, freedom is won back
> - the freedom can be used to create the sui generis systems you propose
>
You can much easier realize your two first points and make software
difficult to patenting. Change of Article 52 the European Patent Convention
can be very small. Create a new paragraph  with the wording borrowed from
current point (2)(c) claiming that these inventions are not industrial
applications:
PROGRAMS FOR COMPUTERS shall not be regarded as inventions which are
susceptible of industrial application within the meaning of paragraph 1.
After the change all juridical interpretations based on "programs as such"
will not be valid any more.
If the sui generis system for protection of software will be created the
exclusion can be written to Article 53 by adding a new point with PROGRAMS
FOR COMPUTERS.
This option is logically preferable, because the lack of industrial
applicability is a fiction. Article 53 groups the other public interest
exclusions.


Jozef Halbersztadt