Re: Summary of legal arguments

[Edward Avis <epa98@doc.ic.ac.uk>]

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On Mon, 21 Jan 2002, PILCH Hartmut wrote:

>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,

Sure, you and I know that but to convince someone else this is not
persuasive.  You cannot say 'the courts made the wrong decision and I
expect it to be changed soon' - that is about as persuasive as the
arguments made about the real intentions of 52(2) and how it will be
clarified.

>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).

Ah, that's more convincing, I shall quote 22 if necessary.

>>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.

So no precedent has been set on how a computer program can infringe a
patent on software (with appropriate amounts of 'not as such' added on
either side).  Is this because patentholders do not expect to win, or is
there some other reason?

>The BGH is, in contrast with the EPO's TBA, a real court of a
>constitutional state with authority to rule over such matters.

Yes, but I cannot quote a decision from the 1970s as indicative of the
legal state now.  I can only talk about the German (or other country)
court decisions of the present day.

>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/

I'll have a look at this.

>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.

Just to check: the BPatG is the patent court which tends to rule against
swpats, while the BGH is the supreme court which tends to agree with the
EPO (subject to what you said above).

>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.

I did not realize that judges made their decisions on the basis of
'large lawyer groups'.  Are you saying that the case against swpats was
simply not put in front of the court?  And what has changed?

>A situation where the rulings deviate from the law is inherently

>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.

As I see it there are two halves to patenting: getting the patent, and
enforcing it.  If you can successfully do both of those then *in effect*
you have succeeded.  This applies even if some people think that the
patent offices or courts are making the wrong decision or
misinterpreting the law.

>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.

But you and I can also err.  I do not want to place my own opinion above
that of the courts.  All I can do is point out cases where the courts
have not yet made a decision and suggest that it's likely they will
reach a particular conclusion - that is, suggest that the EPO's
interpretation of 52(2) is not guaranteed to be followed by member
states.

- -- 
Ed Avis <epa98@doc.ic.ac.uk>
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