Re: Summary of legal arguments

["John Smith" <notobvious@hotmail.com>]

I've been following this post with some bemusement as Hartmut Pilch seems to 
live in a different world to the one I inhabit.

Firstly, whatever theory may say, the national courts have been very happy 
to let the EPO Boards of Appeal make the running. The reason is quite 
simple: few judges in the higher courts understand patents and none 
understand software. In England, for example, there is no-one in the House 
of Lords and the only Court of Appeal judge with patent experience is Lord 
Aldous, aka Willie Aldous. In the High Court, Hugh Laddie is a chemist; I 
don't know anything about Jacob, Pumphrey or Neuburger, but none of them 
have afaik shown interest in the software problem; at least, they haven't 
written on the subject. In Germany the BGH is made up of pure lawyers who in 
my experience hate and fear technical stuff.

This is reflected in the way the House of Lords has talked up the Boards of 
Appeal, referring to them as "judges in all but name". In other words, the 
highest court in England sees the Boards of Appeal as a court. In practice 
too, the English - and German - courts with the exception of the 
occasionally perverse and consistently overruled 17th Senate of the Federal 
Patent Court have sought to harmonise with BoA decisions. The only 
disagreements I'm aware of in England arise from older precedent, which the 
Patent Office feels bound by, in particular Gale's Application.

So Mr Pilch's view of the legal situation is based on wishful thinking.

Secondly, the notion that these people are easy to influence is a sign that 
Mr Pilch has never presented a case in front of them. I'm not aware of any 
"large international lawywer group" exerting influence, at least, no-one's 
ever invited me to join it. Personally I've always subscribed to the cock-up 
theory of history whereas Mr Pilch clearly believes in the conspiracy 
theory.

Thirdly, all the trouble arises from the obscure wording of the EPC. MR 
Pilch occasionally refers to the Minutes of the Diplomatic Meetings which 
preceded the EPC and which are relevant in interpreting it (I believe the 
Vienna Convention on the Interpretation of Treaties says this, but someone 
can correct me if I'm wrong). What he's not so keen on quoting is the 
statement that the parites knew perfectly well that Art 52(2) EPC was 
obscure, couldn't agree on how to improve it and as a compromise said the 
EPO could sort it out. All the EPO has tried to do is bring order to chaos 
in a way which satisfies as many people as possible without doing violence 
to the wording of the EPC. in a situation where amendments to the EPC are 
virtually impossible to agree - it has to be unanimous - what else are they 
supposed to do?

Finally, although I've occasionally seen articles attacking interpretations 
made by the EPO, afaik (remember, I'm not one of the Illuminati) the only 
person who consistently seeks to pressurise the EPO in general and the 
Boards of Appeal in particular to follow a specific line is Mr Pilch, who I 
gather works for a somewhat unprofitable sofware company. Cui bono?

"notobvious"

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