Re: [Patents] FICPI demands obligatory unlimited patentability worldwide

[Erik Josefsson <erikjosefsson@telia.com>]

On Thu, 19 Dec 2002 23:16:00 +0100 (CET)
PILCH Hartmut <phm@a2e.de> wrote:

> The world alliance of patent lawyer associations
> 
>   http://www.ficpi.org/ficpi/newsletters/51/PosPaperSPLT_1.html
> 
> demands that Art 27 TRIPs may not and "was never meant to" be interpreted
> in a "restrictive" way, i.e. in a way that treats the concepts
> "invention", "technical", "industrial" etc as limitations on what can be
> patented.  The new Substantive Patent Law Treaty, which is being
> prepared by WIPO, should, according to FICPI (and according to the
> US delegation at WIPO), impose worldwide patentabilty of anything
> useful.  According to FICPI there is "no reason" to limit patentability,
> and in particular the ever-growing importance of the service sector should
> be taken account of by making patents available for this sector.

Are they outdated or desperate?

In the light of the recent Swedish verdict that rejected a busines
method patent:

http://l2.espacenet.com/espacenet/viewer?PN=WO0028449&CY=ep&LG=en&DB=EPD ;

it is clear that Swedish courts are not interested in unlimited
patentability. The TRIPS argument was put forward, but in this case 
rejected by the Swedish Court of Patent Appeals:

"As pointed out by the plaintiff, Sweden is bound to follow the rules in
the TRIPS agreement since it joined the WTO in 1995. What's relevant to
this case is that article 27 (1) says that the possibility to get a patent
should be available for every invention in any technical field. This
decision has not made any change in § 1 PL [Swedish Patent Law] necessary.
Neither article 27 (1) nor any other part of the agreement gives a legal
definition of the concept "invention." There is no explanation of what is
supposed to be considered a "technical" field, in this regard and for
background on the article see Joseph Straus in GRUR Int. 1996 p. 179:
"Bedeutung des TRIPS für das Patentrecht", part V b) iii, items 35 to
37, in which the relationship to article 52 in the EPC is also discussed."

The quote is from an unauthorized translation of the verdict (case number
01-157), see: http://susning.nu/01-157

For those unfamiliar with Swedish Patent Law it could pehaps be helpful
to quote the opening of the verdict:

"When trying the case, the first consideration is the question of how the
system and the method according to the application is relating to the the
judical invention concept in 1 § first paragraph Swedish Patent Law (PL)
with the specification expressed in paragraph two item 3, according to
which an invention is never considered such as solely consists of "a plan,
a rule or method for intellectual activity, gaming or busisness or
a computer program".

To put it simple. A computer program as such is not an invention. And even
if it is not written out explicitly in the verdict, the verdict is in
alignement with the notion that electronic data processing is not a field
of technology.

As opposed to the EPO koan of T 1173/97: "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."

I am not sure of the exact meaning of the english word "screw" - but
the swedish word "skruvat" feels apropriate for such legalese.

For more on the the swedish invention concept as such see:
http://swpat.ffii.org/stidi/epc52/udgor/

//Erik Josefsson