Re: Summary of legal arguments

[Jozef Halbersztadt <halber@timsi.com.pl>]

From: John Smith <notobvious@hotmail.com>
Sent: Tuesday, January 22, 2002 11:22 AM

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

Some, maybe delayed thoughts. 

Sorry that you don't understand a simple thing. It is self-destructing
for the law makers and politicians to ignore opinion of software
professionals and wider public. There is no difference in attitude of
adherents patenting intangible subject matters in ranks of patent
lawyers and their governmental supporters with the political practice
known from the former Communist states.

After some calculation from the Analysis of replies to the
Consultation Paper produced by PbT Consultants one can get following
numbers.

http://europa.eu.int/comm/internal_market/en/indprop/softpatanalyse.htm

The distribution of the views of respondents:
> For Software Patents 85 responses from 1447 - 6%
> Against Software Patent - 94%
> 
> Against in groups:
> 
> Individuals - 98,5%
> SMEs - 95%
> Large Enterprises - 81%
> Associations - 45%
> 
> User - 99,6%
> Student - 99,5%
> Academic - 98,0%
> Software Developer - 95,8%
> IP Professional - 33%
> Governmental - 22%

----------------------- 

> 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.
> 


The relation between national and European patent rules and doctrines
was clear in the past to the Enlarged Board of Appeal.

> 
> http://legal.european-patent-office.org/dg3/biblio/g830005ep1.htm
> 
> Decision of the Enlarged Board of Appeal dated 5 December 1984, G/83
> Composition of the Board:
> President: R.Singer, Members: P.Ford, O.Bossung, R.Kampf, M.Prelot, 
> G.Szabo, J.van Vorthuizen
> 
> 18. The European Patent Office has the task of granting patents which have
> the same effect as national patents in all Contracting States, even 
> though, at the present time, not all of them have completely harmonised 
> patent laws or outlooks on patent matters. It is particularly important to 
> bear in mind that Article 64(3) EPC leaves questions of infringement to be 
> dealt with by national law. When a national court which is competent to 
> consider both questions of law relating to the allowability of claims and 
> questions of law relating to infringement considers the former, it is 
> likely to be influenced in its thinking by the national rules and 
> doctrines of infringement law with which the court is familiar. It is 
> therefore difficult for the Office to follow the practice of a superior 
> court of only a single Contracting State in a matter which has a bearing 
> on questions of infringement and which is regarded as controversial, 
> however eminent that court may be. It is to be regarded as unfortunate 
> that the appellant in the Hydropyridine case withdrew an appeal to the 
> English Courts against a refusal of the United Kingdom Patent Office to 
> grant a patent for the same invention. The decisions of the national 
> courts of two Contracting States tending in the same direction might have 
> had great weight. Indeed, if other superior courts in Contracting States 
> show that they are prepared to follow the line taken by the Federal Court 
> of Justice in respect of national patent applications, the way may be open 
> for the Enlarged Board of Appeal to reconsider the question so far as the 
> European Patent Office is concerned. For the time being, however, the 
> Enlarged Board of Appeal adheres to its view that a claim directed to the 
> use of a substance or composition for the treatment of the human or animal 
> body by therapy is to be regarded by the European Patent Office as 
> confined to the step of treatment.

Jozef Halbersztadt