[Patents] EPO Swpat Guideline

[xdrudis@tinet.org (Xavi Drudis Ferran)]

El Sat, Oct 06, 2001 at 11:36:36AM +0200, PILCH Hartmut deia:
> While the European Commission is preparing a directive on the limits
> of patentability with special regard to software, the EPO has
> published new examination guidelines:
> 
So, the pope is mandating his bishops to sell "bulas" (is that the 
proper English noun for those absolutions of sin and tickets to 
paradise that the Catholic church gave to rich people who paid enough
and did not seem political enemies?).

I guess the only thing to do is the Reform, I mean we should tell 
everybody to stop believing in the pope. 

If the current guidelines  are against the EPC, then that only means
that lots of companies are going to get invalid patents. In fact in Spain
patents are granted "without warranty of novelty or usefulness", meaning
that you get the patent but you never know if someone will burst it the 
next day. It looks like the EPO is going to grant (or better, keep granting)
patents without warranty for subject matter. 

My concern is: How do the judges deal with such invalid patents, do they 
recognize them as such (sorry, no pun intended) or do they get fooled 
by the fact that the EPO issued them?. I think I remember having heard
of decisions in Germany that enforced the invalid swpats. I am right?. 
How about other countries?.

> where it states bluntly:
> 
>    This scheme makes no mention of the "further technical effect"
>    discussed in T1173/97.  There is no need to consider this concept
>    in examination, and it is preferred not to do so for the following
>    reasons: firstly, it is confusing to both examiners and applicants;
>    secondly, the only apparent reason for distinguishing "technical
>    effect" from "further technical effect" in the decision was because
>    of the presence of "programs for computers" in the list of
>    exclusions under Article 52(2) EPC.  If, as is to be anticipated,
>    this element is dropped by the Diplomatic Conference, there will no
>    longer be any basis for such a distinction.  It is to be inferred
>    that the Board of Appeal would have preferred to be able to say
>    that no computer-implemented invention is excluded from
>    patentability by the provisions of Articles 52(2) and (3) EPC.
>

It is surprising that this does not generate any dimission or 
substitution of the people responsible. They're basically telling 
their superiors what they should do, and expressing a great disrespect
for the law that allows them to exist.

>    However, a
>    data-processing operation controlled by a computer program can
>    equally, in theory, be implemented by means of special circuits, and

I can see Greg smiling 

>    the execution of a program always involves physical effects, e.g.
>    electrical currents. According to T 1173/97 such normal physical
>    effects are not in themselves sufficient to lend a computer program
>    technical character. But if a computer program is capable of bringing
>    about, when running on a computer, a further technical effect going
>    beyond these normal physical effects, it is not excluded from
>    patentability, irrespective of whether it is claimed by itself or
>    as a record on a carrier. This further technical effect may be known in 
> the
>    prior art. A further technical effect which lends technical character
>    to a computer program may be found e.g. in the control of an
>    industrial process or in processing data which represent physical
>    entities or in the internal functioning of the computer itself or its
>    interfaces under the influence of the program and could, for example,
>    affect the efficiency or security of a process, the management of
>    computer resources required or the rate of data transfer in a
>    communication link. As a consequence, a computer program claimed by
>    itself or as a record on a carrier or in the form of a signal may be
>    considered as an invention within the meaning of Art. 52(1) if the
>    program has the potential to bring about, when running on a computer,
>    a further technical effect which goes beyond the normal physical
>    interactions between the program and the computer. 

Then it's alright, only paranormal software can be patented, that is 
software that "has the potential to bring about something beyond the 
normal physical interactions between the program and the computer". 
If we ignore the "physical" word, then you can only patent a program 
if it is going to break your computer and cause it to start doing weird 
things (like flying around the room, or something?).

If we do not ignore the "physical" this means nothing, of course, 
because a physical interaction between 
a program and anything is witchcraft. Programs are logical entities, 
and have no physical interaction with anything. It is like saying that 
a poem or a theorem or a thought has a physical interaction. Last time I 
heard that, it was called telekinesis. I didn't know there was now 
a TAPI (Telekinesis application program interface).

> A patent may be
>    granted on such a claim if all the requirements of the EPC are met,
>    see in particular Art. 84, 83, 54 and 56, and 4.5 below. Such claims
>    should not contain program listings (see II, 4.14a), but should define
>    all the features which assure patentability of the process which the
>    program is intended to carry out when it is run (see III, 4.4, last
>    sentence).
> 
Sure, so nobody should try to patent solutions to problems. They should
patent the problem themselves. Who wants solutions? They want problems!. 
That goes with the EPO mission of 
promoting the progress of trouble and their usual lies. Pity it 
was supposed to promote progress of science and the useful arts 
or something similar... They must have got it wrong.


-- 
Xavi Drudis Ferran
xdrudis@tinet.org