[Patents] consultation questions

[phm@a2e.de (PILCH Hartmut)]

> > Or maybe about Art 52(2) EPC, implying that the EPO is granting patents on
> > subject matter that is according to the written law not patentable.  This
> > is what has been at the center of the public debate recently.

> Maybe. It seems, you also agree that this wording is ambiguous ?

The wording is not really ambiguous, see the interpretation in

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

which corresponds closely to how the text was interpreted during the first
decade after the signing of the EPC.

The problem is not ambiguity but brevity.  Some important questions are
not regulated by Art 52.  The list of exclusions is only a list of
examples, and it is not very easy to explain what is the system behind
those examples.  Conventionally it is said that it is "technicity"
(technical vs non-technical), and then some people start screwing around
with technicity until their definition no longer matches the list of
exclusions.  In order to explain this obvious contradiction, they then
interpret "as such" (art 52(3)) in such a way that the whole list of
exclusions no longer has any practical relevance whatsoever.

For more explanations on how all this happened, see

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

I am told that this kind of law-twisting is not all that uncommon.  When
the legislator gives vague or short laws and the real power of handling
the rules lies with the judiciary, then it is often the judiciary that
sets the rules and anticipates the intended new rules by twisting the
current legislation.  You correctly wrote in one of your articles that the
current "computer program" exception could only be explained "au prix de
contorsions intellectuelles" (at the price of intellectual contorsions),
and that this was a reason why art 52.2c had to be changed.

Some EPO people were even more frank.  They said, correctly, that the
whole list of exclusions had to be removed in order to bring the law in
line with their practise.

> This will not help the clarification of the situation. But I'm
> personally confident in a status quo decision...

The leading politicians have neither the knowledge nor the will to set any
clear rule.  They dare neither to confirm the current EPO doctrine nor to
reestablish the physical vs logical borderline.  They will still pretend
that there is a limit to software patentability in Europe, and thus still
continue to favor the American applicants who aren't deterred by such
wording.

Instead of a clear and short Art 52(2) we will almost certainly have a
fuzzy and long European directive proposal.  The General Directorate for
the Internal Market are not capable of writing anything intelligent.
They are all good pupils of the EPO but at the same time afraid of saying
things clearly enough for public opinion to understand.  That's the safe
course for them.  By doing that they can make sure that their career
within the European patent institutions goes on without much trouble.

So why bother at all to "clarify the law", when the clarification only
results in making it unclear and fostering legal insecurity?

The answer is simple.  By installing legal insecurity, the patent movement
can force those national lawcourts that are currently still resisting the
EPO's zigzag course to go along with the EPO, thus leading to
significantly more and better enforced software patents in Europe.

-phm