[Patents] Alert: Software Patents in Europe: Juridical Coup at the EPO

[phm@a2e.de (PILCH Hartmut)]

Greg wrote:

> >The EPO has finally gone all the way towards completely ignoring the
> >software exception in 52.2c.
>
> No, EPO is ignoring the theoretical exception in 52.2c by making sure
> applicants aren't patenting computer programs "as such", using 52.3.

They actually just legaglised claims of the form

 "a computer program, characterised by that it ..."

According to earlier understanding of the EPO, this is the definition of
"patenting a computer program as such".

According to even earlier understanding, such as that of the

        EPO examination guidelines of 1978
        http://swpat.ffii.org/vreji/papri/epo-gl78/

any abstract process would be considered a computer program as such, even
when described in terms of a process running on a concrete machine.

This early understanding is correct according to all the standard
methodologies of law interpretation: literal, systematic, historical,
teleological and makes perfect sense, while the current one does not and
has the exact opposite meaning of what was evidently intended.

> Don't blame EPO for trying to come up with a workable solution for the
> joint stupidity of 52.2 and 52.3.  Blame whoever drafted the EPC for
> sticking such ill-defined language into the EPC.

The EPC is quite well drafted.  Especially Art 52 is a fine piece of
legislative work.

The problem is that
* you need to do some thinking in order to fully understand it
* there is a strong motivation for the EPO and its friends not to
  do this thinking.

The result is known and quite easy to grasp:

        http://swpat.ffii.org/stidi/epc52/moses/

Maybe not yet easy enough for you, Greg?

> And their use isn't "criminal" when using 52.3, so stop using that
> word on this list.

I didn't see that word being used.

Yet, the behavior of the EPO president and his friends is more than
against the law.  It does display phenomena such as "criminal energy" in
pursuing selfish aims.  Very similar to the symptoms shown by many
long-grown organisations who have lost track of their purpose and have
become an end in themselves.  Sometimes such organisations can grow to a
degree where they are beyond political control and therefore also not
subject to criminal procedings.  They generate a mechanism of negative
selection that push a kind of colorless cadre type of person into the top
position.  This person is characterised by neither conscience nor
capability but rather by an emotional allegiance to the internal life of
the apparatus.  Thus this kind of person will often recklessly push for
the expansion of his apparatus, without any consideration for the general
interest.  This, in turn, is seen as "criminal" by outsiders.  Sometimes
it even ends before a court, but more often outsiders are forced to put
up with this result of negative selection, i.e. scum of the earth.

One such example is the Japanese military of the 20-40s.  In the 20s, they
were still controllable through veteran military politicians, some of whom
signed arms control agreements and cooperated with the League of Nations.
Each arms control agreement led to a drop of social status of the young
officers.  They felt the difficulty of finding brides.  Yet their career
was bound to the closed world of the military, just as the career of
patent experts is bound to the closed world of the patent establishment.
Thus, when the veteran politicians died away, they started bullying and
even assassinating all politicians who supported arms control.  They drove
the country onto an uncontrollable military adventurist course, because
that was the only way for them to be important.  Finally, in 1945-48, many
people said that the Tokyo Tribunals were really illegitimate, a kind of
lynch justice of the victors. In a formal sense, this was correct.  Yet in
a moral sense, there may have been ample reason to speak about "criminals
of war" and demand retribution.

Our constitutional order says clearly what the duties of someone like Ingo
Kober are.  But these duties are not enforcable.  Politicians need to
enjoy a certain immunity.  So Kober, himself a lawyer, can for the time
being safely disrespect the constitutional order and orient all his action
toward the particularist interest of his organisation, comfortably follow
the dictate of the internal dynamism of this organisation.  He is
apparently a result of negative selection of mechanisms of social
organisation.  Any person with a sense of duty and conscience may not be
able to survive at the top of such an organisation.

When the Tenno expressed his wish for arms control, the generals at the
top of the army just ignored him and showed their real scorn for the
pro-tenno propaganda that they would usually preach to their subordinates.
This shows, all principles of public order are meaningless for these
people, they are only products of their organisation. When such an
organisation grows foul, it generates mechanisms of negative selection,
putting the most depraved and not particularly intelligent people at the
top, thus eventually making the whole organisation act in a less and less
rational way.  That is what happened with the Japanese army, and it is
what we are observing at the EPO.  In a way, the results of such
large-scale negative selection are worse than what the word "criminal" can
express.

There is no need to throw around a lot of harsh words here.  But no need
to deceive ourselves either.

--
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
90000 signatures against software patents       http://www.noepatents.org/