Re: Summary of legal arguments

[PILCH Hartmut <phm@a2e.de>]

> >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.

Without the reality of violation of law in mind, you will not be able to
understand what is going on right now, be it persuasive or not.

> >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.

In reading this article, you will notice that the EPO does have a body
that is entitled to judge questions of law interpretation, the Enlarged
Board of Appeal.  However even this EBA is below the national courts.  It
should thus decide in a conservative way, reflecting a consensus position
closely based on the most likely interpretation of the law.

The methodology of interpreting laws is quite well established.  According
to law textbooks here it is

        1 literal
        2 systematic
        3 historic
        4 teleologic

The literal interpretation already yields clear results in the case of art
52, and all the others confirm these results.  What EPO & Co have been
trying to do is to

 1 make false historical assertions, hoping nobody investigates the sources
 2 make dubious teleologic assertions (e.g. patents are needed to promote
   innovation and this applies equally everywhere)

often both of these in combination, as seen well in the EPO's T1193/97
decision and in the texts of judges such as Mark Schar (EPO) and KLaus
Melullis (BGH), see references in

        http://swpat.ffii.org/stidi/korcu/

However it is common knowledge that teleologic assertions have very low
weight.  When major actors ignore the wording, create a systematic
interpretation that conflicts with the wording or renders it meaningless
(such as claiming that all exclusions refer to non-technical items and
then saying that programs for computers are technical), and then base
their arguments on arbitrary teleological assertions in combination with
false historical assertions, this contradicts all serious and well
established methods of law interpretation and it is an indication that the
law is being violated under the tacit consent of an interested group of
people who happen to be wielding the power of law interpretation.

> >>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?

Indeed there is a great danger for patent holders in such procedings. A
defendant can say that he wrote nothing but a computer program as such,
which isn't an invention.  So far all procedings before EPO and BGH tended
to be tete-a-tetes between big software patent holders/applicants such as
IBM and Siemens and patent judges.  The "poor software inventor" was
clamoring for equality of rights with hardware inventors, and the victims
of this game were not represented, as they would be in an infringement
proceding.

> >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.

No, you can.
The law hasn't changed since then, and since the swpat advocates base
their arguments on historical interpretations of the law, quoting cases
from the time around the framing of the EPC refutes them.
Moreover, the Dispositionsprogramm decision is still highly respected.
Even the EPO quotes it in many of its decisions, the BGH even more so.
Mark Schar dedicates a lot of text to trying to explain why it shouldn't
apply today.
The Dispositionsprogramm decision is the bad conscience of the EPO and
BGH, especially because it envisages the possibility of the later EPO's
caselaw development and says explicitely that this is a "forbidden path".

> >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.

in German only, any translation help?

> >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).

More exactly: the BPatG's 17th senate uses every possibility to rule
against swpats.  This has been its tendency since 1973, it was rather pro
swpat before.  The BPatG's 21th senate (electronics) is very much pro
swpat.  Its presiding judge Anders seems to be a particularly fervent
supporter of the EPO's course and uses every opportunity to portray
himself as "progressive" and his colleagues from the 17th senate as
"conservative" or "restrictive".  He even wrote an article in the 90s in
which he claimed that information has gradually evolved to become a new
force of nature.  I find this article very hard to understand.

> >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?

Not only in the patent field, the knowledge horizon of the average judge
is defined by what appears in legal literature.  Anything beyond that may
influence one or another judge, but will hardly have an impact on the way
judges decide as a whole.  This legal literature (e.g. GRUR in Germany)
has been overwhelmingly pushing for patent inflation once the US and the
EPO TBA gave the signal by opening the floodgates.  The BGH resisted the
tide for a few years but finally gave in.  This is not only my personal
impression gathered from reading GRUR, but also the impression of the
concerned judges, as far as I have been able to talk to them.  They are
gradually awaking and finding that their view had been clouded by a hype.
They are cautiously "rowing back", at least making preparatory moves to
get out of their corner.

> >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.

Still, if there is a gap between the law and the practise and the law is
not adapted to the practise, then it is very likely that the practise will
in a few years be adapted to the law, especially when vocal public
criticism (and perhaps legal action) helps to push that trend.  Many
challenges to the current regime are possible, as long as the EC does not
forstall them by a directive.  Which is of course why the patent lobby
wants a directive.

> >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.

Nor below that of the courts.
Opinions are equal.
Some are more equal than others due to the normative force of the facts
which they create.
Still such factual norms are different from and may be in conflict with
legal norms, and it may be impossible to understand what is going on if
you don't take that conflict into account.

-- 
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/