"as such" does not exist

[Erik Josefsson <erikjosefsson@telia.com>]

Hartmut Pilch writes:

"the "as such" clause has nothing to do with any debate about programs for
computers."

        http://liberte.aful.org/pipermail/patents/2002-January/002606.html

I think there are good reasons for this argument also from the fact that the
famous "as such" clause is not even present in Swedish and Danish law.
The surrounding legal text is identical both in form and content. EPC 52.3 is
simply inserted between the list of exclusions and the remarks regarding
medical treatment and surgery. This can easily be seen from comparing:

        http://www.european-patent-office.org/legal/epc/e/ar52.html
        http://www.prv.se/patent/06_patentlagen_kap01.html
        http://www.retsinfo.dk/DELFIN/HTML/A2001/0078129.htm#K1

In swedish and danish law the whole meaning of EPC 52.3 is contained in the
words "vad som utgör enbart" and "hvad der alene udgør" ("what only is" or
"what alone constitutes") and they are a part of the exclusion header:

        sw: "Såsom uppfinning anses aldrig vad som utgör enbart"
        dk: "Som opfindelser anses især ikke, hvad der alene udgør"

Which translates word by word into "As inventions are never regarded what
alone constitutes (... programs for computers)"

It's very unlikely that the swedish and danish delegations at the
negotiations in 1973 did consider EPC 52.3 as important as EPO did in the
famous decision T 1173/97:

"4.1 ... The combination of the two provisions (Article 52(2) and (3) EPC)
demonstrates that the legislators did not want to exclude from patentability
all programs for computers. In other words the fact that only patent
applications relating to programs for computers as such are excluded from
patentability means that patentability may be allowed for patent applications
relating to programs for computers where the latter are not considered to be
programs for computers as such.
4.2 In order to establish the scope of the exclusion from patentability of
programs for computers, it is necessary to determine the exact meaning of the
expression "as such". This may result in the identification of those programs
for computers which, as a result of not being considered programs for
computers as such, are open to patentability." (page 13)

        http://www.european-patent-office.org/dg3/pdf/t971173ex1.pdf

It's funny how they have tried to find out the intentions of the
legislators... but the tragedy is that this EPO interpretation of a clause
that does not exist in Swedish and Danish patent law affects our national
caselaw and inserts extranational legislation through a back door.

Intranational organisations are not allowed to execute power in matters
regarding basic constitutional rights like freedom of speech and
proffessional and property rights (this is expressed explicitly in the
swedish constitution: SFS 1974:152 10 kap 5 § 2 stycket). Yet it is
happening before our eyes.


//Erik