Re: [Patents] Summary of legal arguments

[Bernard Lang <Bernard.Lang@inria.fr>]

Ther is one good reason to believe that EPO patents are not uniformly
enforceable ... everyone agrees (actually not I) that 52-2 is unclear.
And courts have to interpret it.  And the commission wants to clarify
the situation precisely to guarantee uniform interpretation in all
countries.
  but IANAL

This being said, I met Kolle last thursday ... he came give a talk in
my institute (actually a big set up to convince all people in charge
of scientific transfert that software patents are ideal.  It fizzled.
  Kolle talk was excellent as far as presenting the current set-up
they are advocating and trying to enforce, and comparision with USA
and Japan.

  His interpretation of 52-2 and -3 is that computer programs as such
means computer programs as listings.  He pretended that that is what
had always been meant by this expression.
  A first remark is that it would really be absurd to have that in the
law, since no one would think of paying to protect the text of a
program, when it has already a free and stronger protection by
copyright.
  I made the point that in 52-2 and -3 , computer programs and
mathematical formulae are treated on an equal footing.  Hence the
words have to be interpreted similarly for both, and his
interpretation is totally meaningless when applied to mathematical
methods.  It is clearly the abstract concept that is being the method
that is being considered, and not a textual description of the method.

Bernard


On Sat, Jan 19, 2002 at 04:55:45PM +0000, Edward Avis wrote:
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> On Sat, 19 Jan 2002, PILCH Hartmut wrote:
> 
> [suggested reading on the legality of swpats]
> 
> >A few relevant papers on there have English versions, such as
> >
> >     http://swpat.ffii.org/vreji/papri/patpruef/indexen.html
> >     (written by a patent examiner, very unpolemic and sharp at the
> >     same time)
> 
> Too long and too Germany-centric.  Also I fear the prose may have lost
> something in translation.  There are good _responses_ there to earlier
> arguments, but my reader will be someone with no knowledge in this
> field.
> 
> >     http://swpat.ffii.org/stidi/korcu/indexen.html
> 
> This is better but still it doesn't talk much about the practical
> question of whether the EPO's software patents are valid and
> enforceable.
> 
> Have there been any enforcement proceeding for software patents (as
> such or otherwise) in Europe?  What was the outcome?
> 
> I may need to summarize things myself, but I'm reluctant to do that
> since IANAL.  However there is no harm in quoting Article 52, the 1978
> EPO guidelines and important decisions.  I am planning to use the July
> 1998 decision
> <http://www.european-patent-office.org/dg3/pdf/t971173ep1.pdf> as the
> source for the EPO's 'software not as such' reasoning.  Is there any
> other decision I can quote?
> 
> The Dispositionsprogramm ruling is an example of how courts can
> distinguish between computer programs and the physical world, but it has
> been superseded by newer rulings and in any case applies only to
> Germany.  I would be interested in British or Irish rulings on whether
> software patents can be granted and whether they are enforceable.  The
> UK Patent Office seems to follow what the EPO does so its decisions are
> not interesting in themselves.
> 
> - -- 
> Ed Avis <epa98@doc.ic.ac.uk>
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