Re: Summary of legal arguments

[PILCH Hartmut <phm@a2e.de>]

> 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.

Even if they could be enforced in some or all countries, this does not
mean that this situation is stable.  It could have been brought about by a
legal error that spread from the EPO to other courts and is waiting to be
corrected any time, as soon as some national courts realise that they
themselves are actually the supervising authorty and the EPO technical
boards of appeal are only internal chambers of an
international administrative organ which are not even entitled to judge
legal issues (art 22 EPC).

> Have there been any enforcement proceeding for software patents (as
> such or otherwise) in Europe?  What was the outcome?

There have been no infringement procedings afaik.

> 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?

That's the best source, together with the new examination guidelines of
2001/10.

> 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 been superseded by newer rulings and in any case applies only to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.

The BGH is, in contrast with the EPO's TBA, a real court of a
constitutional state with authority to rule over such matters.  It
represents a board member of the EPO, while the TBA is only an executive
organ of that board.  Thus, the EPO has only the right to abide strictly
by the words of treaty or perhaps by some international consensus about
the treaty.  Whether this international consensus exists depends on the
national courts.  The experience shows that a certain consensus of an
international group of patent lawyers exists, but they cannot count on
the national courts and the latter are at best moving under pressure from
this international group, always a few years behind the TBA rather than
ahead of it.  Some, such as BPatG/17 are even explicitely resisting, see
the BPatG decision of 2000 which declared claims to information objects
("computer program product" etc) illegal:

        http://swpat.ffii.org/vreji/papri/bpatg17w6998/

Although this has recently been refuted by the BGH, the refutal itself
contains some elements that contradict EPO jurisdiction and can allow the
BPatG to continue its resistance.  BPatG resistance has been going on for
years and it has always been a pingpong game between the two courts, of
which the BGH had the tendency of trying to "close the gap to the EPO".
This was due to the influence of the large international lawyer group
against which the judges felt themselves isolated.  But that has changed.

A situation where the rulings deviate from the law is inherently instable.

> 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.

The UKPTO has to follow decisions of British courts, I assume. Perhaps
some of these are tilting towards the EPO pressure group and forgetting
their role as a court within the constitutional order of a board member of
the EPO.  They may wake up to that role any time.  Whether currently
something is in practise enforcable is an interesting question, but it
does not answer the question of whether software patents are legal in
Europe or not.  It cannot be used to 'dispel some myths'.  Legality is not
a question that can be answered by empirical findings.  Since humans can
err, what is legal and what current courts say need not be the same thing.

-- 
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/