Re: [Patents] Greg: German semantics of "technical"

[PILCH Hartmut <phm@a2e.de>]

> The EPC should define how the concepts "technical", "invention" and
> "technical invention" should be interpreted and it does not. This opening
> has then been used to further the political agenda of the EPO.
> I still maintain that if there had been the political will, the EPOs misuse
> of power could have been stopped based on the EPC in its current form.

Indeed the current EPC is clear enough to make all these abuses illegal
and to let people in Brussels and Munich feel that they need to change the
law in order to get out of the trouble of illegality.

The implicit concept of "patentable invention" or "technical invention" in
Art 52 also can not be interpreted in any other way than the EPO
guidelines of 1978 and the BGH jurisdiction of the time did it.  Any
interpretation that fails to define "technical invention" as mutually
exclusive with "programs for computers" will lead to chaos and violation
of the article.   And the criterion needed for the mutual exclusion is of
course the question whether forces of nature are a constitutive part of
the problem solution.  This is clear from reading the list of exclusions,
and no other criterion has ever been proposed.  Softening the criterion by
some "wholistic" refusal to isolate the problem solution from the context
is, whatever the merits of wholism may be, not permitted under article 52.

In the 70s and 80s, patent law manuals regularly explained that there was
a strong pressure to make software patentable by doing all these
impermissible things (such as wholistic approach, claim language games
etc), but that all these were illegal and even unconstitutional and had to
wait for a decision of the legislator.  Yet in the end ignorance, fuelled
by greed, prevailed.

Thus the problem here is one of lack of corruption of the rule of
law through a lack of political checks and balances.   Nobody knows
whether the EPO would have honoured an even more explicit law.  We can
only speculate about that.  More needs to be done than just to make the
law explicit.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
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