[Patents] myths about EPC conference of 1973 debunked

[phm@a2e.de (PILCH Hartmut)]

Through our news page

   http://swpat.ffii.org/cnino/

you can now find the excerpts from the conference protocol of the EPC
founding conference in 1973 with some analyses.  The main text is
available in German only so far.

The text shows that the BGH has mispresented this protocol in its
recent computer program claim legalisation decision.  Although,
compared to recent BGH decisions, it is already a big achievement that
the BGH is finally making serious efforts at interpreting art 52 EPC,
much of its argumentation hinges on the "historic method", and this
again hinges on dubious if not false claims about the meaning of this
protocol, which in turn does not reveal very much.  But what it does
reveal is that 

- major countries were serious about limiting patentability and made
  it clear that the EPO was not to be allowed to widen the limits by
  any means whatsoever
- they found that "programs for computers" was difficult to define and
  expressed confidence that the EPO would be able to handle the
  concept in a clear and consistent way nonetheless
- the "as such" clause has nothing to do with any debate about
  programs for computers.  it was a political means of defusing
  concerns raised by some more laxist-minded delegations that a too
  strict regime could lead to inadequately extensive exclusions.  Such
  concerns were raised with regard to most items in the list.
- FICPI (union of patent lawyers) opposed the inclusion of programs
  for computers and tried to provoke some fears, but this did not
  provoke any recorded debate, except for a reminder by the president
  of the assembly that the term "programs for computers" is difficult
  to define and yet probably clear in practise.  There was also a
  definition debate about the term "computer" in the three EPC
  languages, which also lead only to a confirmation of the proposed
  wording.  Again certain possibilities of diverging interpretation
  were not considered to pose a serious problem.
- In general the protocol is rather short and superficial and shows that the
  real thinking work concerning art 52 must be looked for in
  the background discussion of more specialised courts and writers of
  the time.  Although from these, the picture becomes even clearer,
  even a look at the mere conference procedings shows that the legislator
  meant what he wrote and what courts at the time considered him to
  have written.

-- 
Hartmut Pilch                                          http://phm.ffii.org/
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/