Re: Summary of legal arguments

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

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On Tue, 22 Jan 2002, John Smith wrote:

>Firstly, whatever theory may say, the national courts have been very
>happy to let the EPO Boards of Appeal make the running.

With reference to this particular issue of 52(2) or in general?

Clearly the purpose of the EPO is to decide on particular cases and to
reach a decision where the EPC guidelines are unclear.  It's natural
that the courts would agree with the EPO in cases where it is performing
its assigned function under the Convention.

But are the courts happy that the EPO tries to decide new points of
law and invent entirely new distinctions (the intriguing concept of
'software not as such')?  Maybe they are, but it seems to me that the
job of interpreting the EPC cannot be left entirely to the EPO, any more
than laws limiting police powers are interpreted only by the police.

>The reason is quite simple: few judges in the higher courts understand
>patents and none understand software.

As a programmer I would suggest that the same is true of the EPO's board
of appeal.

>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.

So you feel that if a case came before the Lords, they would be likely
to agree with the EPO's decisions?  Even in this particular case of
Article 52(2)?

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

Perhaps - but no less wishful than the article I originally set out to
argue against, which claimed that software patents were now fully
possible in Europe without considering the question of whether the EPO
is acting within its authority.

FWIW, I also dislike conspiracy theories and the idea of a shadowy group
of patent attorneys mysteriously influencing judges.  But I don't think
that's quite what Hartmut P. was suggesting.  It is probably true that
in the past the pro-swpat case has been put more forcefully and the
opposing questions have been brushed aside or just ignored.

>Thirdly, all the trouble arises from the obscure wording of the EPC.

As a non-lawyer it does not seem obscure to me.  At least not on the one
specific question of whether patents are to be available for computer
programs.  Similarly it is crystal clear that aesthetic creations,
scientific theories and all the other explicit exclusions are not
patentable.  You don't have to read between the lines and infer some
underlying rule of 'technical effect' to reach this conclusion: it is
there in black and white.

>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.

Which is a reasonable expectation, if a little naive with hindsight.  I
don't think anyone expected the EPO to 'sort it out' to such an extent
that its current practice is the complete opposite of what the law says.

The current interpretation used by the EPO makes no sense at all.  If
the question of 'technical effect' determines patentability, why did the
legislator bother to list programs for computers as an explicit
exclusion?  After all, 'programs for computers not as such' would not
need excluding since they have no technical effect.  The EPO has
interpreted the law in such a way that the exclusions in 52(2) become
redundant.  That cannot have been the legislator's intention.

>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.

The current situation pleases nobody.  Besides it is not the job of the
patent office to 'satify' people or do what pleases one particular set
of lobbyists (either the pro- or anti- camp).  Their job is to judge
patent applications according to the rules in the EPC.  The rules are
chosen to maximize economic benefit and not set by the EPO itself.

I'd say that taking a clear definition and replacing it with pages and
pages of sophistry and a meaningless distinction between software as
such and software not as such is doing violence to the intention of the
EPC at least.  But you are right - why bother to change the wording when
by creative reinterpretation you can make the treaty say anything you
want?

>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?

How about follow the law as it stands?

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