Re: [Patents] Re: Summary of legal arguments

[PILCH Hartmut <phm@a2e.de>]

> 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.

Exactly.  This is why they tend to follow the EPO even when they are the
ones who should be deciding.

> 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.

Quite right, althoug in this case we are talking about questions of how to
interpret laws, not about "technical stuff".

The 17th senate of the BPatG, which regularly decides against swpat,
is composed of physicists, chemists etc who do understand technical stuff.

Again, a feeling of confidence in one's own understanding, seems to be a
decisive factor in determining whether a national court is able to fulfill
its role, even in legal questions.

> 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.

That's precisely the problem.
The BoA is authorised only to bind the EPO, not anyone else.
National courts do not have the right to follow the BoA.
The BoA can for them be no more than an expert opinion.

> 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.

Which means that they have sought to evade their responsibility and only
the BPatG/17 has taken its role seriously.

> 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.

Wishful thinking about the willingness of people to abide by laws, not
about the laws themselves.

> 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.

There is no such statement, afaik.
If you can find such a statement, please show it and quote it in full
text.

What I know of is the minutes of 1973

        http://swpat.ffii.org/vreji/papri/muckonf73/
        (only in German)

which contain a remark by the president of the assembly, responding to
FICPI's (patent lawyer association) demands for a definition of "programs
for computers", saying that a definition is difficult and not needed,
because the EPO can be trusted to know what is meant and to come up with a
defintion when necessary.

Asking for definitions of elementary terms is a common deceptive
argumentation tactic, as anyone knows who has read Karl Popper.
Also anyone who as argued with in public about swpat with patent lawyers.
Many of these start their argument with a definition debate about "what
are software patents", trying to score points on the difficulty of the
other side in defining something that is understood.

> 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.

It has done "violence to the wording of the EPC" (see article by patent
attorney Koenig in GRUR 2001, those are the exact words he uses, after an
in-depth grammatical analysis of the text, which proves that there is
nothing unclear about it).

> 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?

obey the law.

which is probably in accordance with the will of as many people as
possible.  If you don't believe it, try to start an online petition for
the current EPO practise.

-- 
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/