Re: Business methods patents in national European offices

[PILCH Hartmut <phm@a2e.de>]

> > At the meeting in Amsterdam
> >
> >     http://swpat.ffii.org/conferences/2002/amsterdam08/
> >
> > some people reported at their attempts and failures to kill stupid EPO
> > patents by means of prior art, much of which happened to be supplied by
> > Greg Aharonian.  Greg's method, it was said, consists mainly in supplying
> > "tons of prior art", e.g. 500 articles from some old journal.  The problem
> > is that given the practially non-existent non-obviousness standards of the
> > EPO, you would need 1-2 documents that photographically match the patent,
> > not 500 that come somewhere close to it.
>
> If the doctrine of equivalents applies at the level of infringement to
> expand patent scope, why shouldn't a corresponding doctrine apply at the
> level of testing novelty and non-obviousness to limit its scope?  Why,
> then, wouldn't "close" references to prior art suffice to limit scope?

Indeed it does.

That is usually called "reverse doctrine of equivalence", and US courts
seem to be more willing to apply it than the EPO.  Still I would assume
that in many cases this still doesn't help.  The doctrine of equivalence
will extend or limit a claim only to the borders of the underlying
teaching.  I understand it as a means of correcting the imperfectness of
claim language by reconstructing what the real contribution was. This can
naturally not be taken too far.

I may be wrong.  My knowledge comes only from a few cases and a few books.
At least in the cases discussed in Amsterdam reverse equivalence was
evidently not enough to make Greg's prior art bite.

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