[Patents] European patent jurisprudence drifting toward insecurity

[phm@a2e.de (PILCH Hartmut)]

European Patent Jurisprudence Captive in its own Network of Fallacies

    So far computer programs are not patentable in Europe. This doesn't
   mean that a patentable new industrial process may not be controlled by
   software. However the European Patent Office and some national courts
            have gradually blurred this formerly sharp boundary.

Unlimited Patentability or limitation to applied natural science?

   According to the European Patent Convention, computer programs are not
   patentable. This does not exclude that a patentable technical process
   may run under program control. However this process must be based on
   new insights into the causality of natural forces, and it must
   represent a solution to an industrial problem. The realm of pure
   reason, i.e. calculation, abstraction and programmation, must,
   according to the will of the legislators, remain free from patent
   claims. In its groundbreaking verdict "Dispositionsprogramm"
   (disposition program) of 1976, the German Federal Court
   (Bundesgerichtshof BGH) discussed this subject extensively and
   confirmed the dichotomy between the "realm of reason" and the "realm
   of natural forces", saying that the patent system must stay confined
   to the latter and lawcourts do not have the right to extend it into
   the former, since this would be against the will of the legislator and
   that it could pose a serious danger to freedom and basic interests of
   society while not necessarily helping to promote the progress of
   mathematics or any other of the non-patentable realms of reasoning.
   The wisdom of this famous court verdict, which has recently been
   confirmed by new studies in the economics of technological innovation,
   was later implemented into the examination guidelines of the German
   Patent Office as well as the European Patent Office, and it served as
   a major orientation for Patent Law commentaries such as the standard
   work of Dr. Georg Benkard, who explained this concept of technical
   character in his commentary of 1988 and even in later editions.

   At the same time, since the 1960s there has been an increasingly
   influential group of patent lawyers who were not willing to accept a
   limitation of the patent systems to the "world of matter", arguing
   that this would keep patents out of some of the most interesting
   spheres of future economic development. Under their influence, the
   erosion of patentability standards proceded at a quick pace. Control
   logic in the area of microelectronics was patented, and abstract
   claims to functionality gradually became acceptable, making it
   inconsistent to uphold the "discrimination against computer programs".
   The patent departments of Siemens and IBM made special contributions
   to the "evolution of caselaw", investing large sums of money and
   manpower to bring about several landmark decisions by the EPO and the
   German Federal Court. By 1999, all items in the exclusion list of Art
   52 EPC, including mathematical methods, computer programs,
   organisational methods and methods of presenting information, became
   de facto patentable, and the exclusion list was interpreted to apply
   only to meaningless "as such" entities. This means that on the one
   hand anything, even chemicals or pharmaceutics, could be put on the
   exclusion list without influencing the patentability of such items,
   and on the other hand there is no more any limit to the expansion of
   the patent system into the whole range of logical innovation, from
   software to music to social engineering or political schemes. The
   patent system can become a vehicle of more or less total social
   control.

   However the patents granted on this basis are still of uncertain
   value. Independent lawcourts such as the famous 17th senate of the
   Federal Patent Court regularly find contradictions in the reasoning of
   EPO and BGH and reject claims to computer programs or logical ideas.
   Other European lawcourts can be expected to point out these
   contradictions any time. This is why the patent community has taken
   initiatives to change the European Patent Convention and/or to issue
   new laws, such as a planned "European Community Directive on the
   Patentability of Computer-Implementable Inventions", an euphimistic
   title for the project of codifying the EPO's current practise of
   patenting what should be called "implementation-independent computing
   problems". Under the  name of "harmonisation",
   they intend to remove "legal insecurity"
   which is not due to national peculiarities (they don't exist in this
   field) but solely to the unsatisfactory interpretation of law that the
   EPO and a few other courts have sought to establish.

Further Reading

   -> Thomas Winischhofers Seite =FCber Patente and Juristische
          Dissertation von Thomas Winischhofer: Computersoftware und
          Patentrecht:

     The EPO itself has so far failed to develop any systematic
     interpreting framework. Even the much-discussed "computer program
     product / IBM" decision bases its argumentation on individual
     cases. The EPO caselaw is thus a disparate collection of individual
     cases. Even the above-mentioned "computer program product" decision
     falls short of giving a definition of "technical character",
     although the EPO has stated that this is the decision on which it
     wants to base its future judiciary practise.

   -> Gert Kolle: Technik, Datenverarbeitung und Patentrecht --
          Bermerkungen zur Dispositionsprogramm - Entscheidung des
          Bundesgerichtshofs:
          Gert Kolle, today an EPO bureaucrat, was in the 1970s the
          leading law scholar on questions of patentability of computer
          programs. He acted as a "scientific adviser and rapporteur of
          the German delegation" at various patent legislation
          conferences of the 1970s. He always strove to interpret the
          current jurisdiction in a scholarly and systematic manner, far
          from what he called "ideological petrification of the software
          patentability debate" even in those days, and in this article
          of 1977, published in the leading German IP law journal, he
          explains, why computer programs canot be considered to be
          "technical", and why any attempt to "naively or willingly" open
          up the patent system for computer programs would inevitably
          lead to unlimited patentablity and to dangerous monopolisations
          of the sphere of pure reason, which, although thinkable under
          the EPC, go far beyond what a responsible judge may be allowed
          to decide. Kolle says that conservatism on this matter is a
          virtue, and a judge should be proud to wear the label "stuck in
          19th century thinking", that software patentability proponents
          of the 1970s were eager to post onto their critics.

   -> Dr. Swen Kiesewetter-K=F6binger: =DCber die Patentpr=FCfung von
          Programmen f=FCr Datenverarbeitungsanlagen:
          An examiner of the German Patent Office analyses the
          inconsistencies and illegalities of the current software
          patenting practise -- a brilliant and profound analysis from
          November 2000.

   -> Lamy Droit Informatique:
          article by M. Vivant, a leading French patent law scholar, in
          the authoritative French enyclopedia of comoputer law. Vivant
          explains what the law means and how the EPO has bent it step by
          step so as to allow the patenting of computer programs. He
          warns that patents granted under this regime are of uncertain
          value.

   -> Regulation about the invention concept of the European patent
          system and its interpretation with special regard to programs
          for computers:
          Only a few words are needed to explain to patent lawyers how 52
          EPC can be interpreted in a meaningful and consistent manner.
          This Eurolinux proposal for a EU directive fits into one letter
          paper page. The advocates of patent inflation on the other hand
          write long EU consultation papers supposedly aiming to
          "harmonise" and "clarify", but in reality creating more
          inconsistencies and confusion with each line of text.

   -> Arno K=F6rber: Patentschutz aus der Sicht eines Gro=DFunternehmens:
          The longtime chairman of the Siemens patent department, Arno
          K=F6rber, explains, how his department actively contributed to
          the "evolution of patent law" in order to adapt the "stubbornly
          conservative" practise of the German Patent Office to the
          "modern" rules of the global telecommunications and software
          business, which are set by the USA, namely the Court of Appeal
          for the Federal Circuit (CAFC). A mega corporation like Siemens
          can cope with any rules, be they good or bad, but it wants them
          to be uniform across the whole world.

   -> Mellulis 1998: Zur Patentierbarkeit von Programmen fuer DV-Anlagen:
          The software patent expert of the German Federal Court, Klaus
          Melullis, cites Microsoft as an example of a company that has
          acquired a dominant position by means of software and explains
          that since software has entered the center-stage of economic
          activity, it must be awarded patent protection. The list of
          patentability exclusions in Art 52 EPC is a non-exclusive list,
          meant to include only "non-technical" items. But software is,
          according to Melullis, technical. He solves this contradiction
          by assigning the term "computer program as such" an obscure
          meaning that makes it irrelevant in practise. This
          highly-debated article forms the basis for the new BGH caselaw
          of 1999/2000, which goes even beyond the EPO in postulating
          unlimited patentability.

   -> Political Economy of the Patent System: the Mechanisms of Patent
          Inflation:
          During the last 200 years, the patent system has continually
          expanded. This expansion is not so much the result of conscious
          economic policy but rather to self-propagating mechanisms
          similar to monetary inflation or to the arms race. This article
          analyses the mechanisms of patent inflation, traces their
          evolution and points to possible paths of escape.

   -> The Impact of Granting Patents for Information Innovations:
          According to this report by the US National Research Council,
          software patents were introduced by lawcourt decisions without
          support from the legislature, and it seems doubtful whether the
          patent expansion is promoting the progress of science and the
          useful arts, as Congress intended. The Court of Appeal of the
          Federal Circuit (CAFC) has taken the patent system into
          "unchartered waters", and the experience of the software
          industry suggests that this decision is urgently awaiting
          legislative review.
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     http://swpat.ffii.org/stidi/korcu/