Re: [Patents] community patent

[Hartmut Pilch <phm@a2e.de>]

> If the directive is passed, it will supersede Art 52 EPC.  Older laws are
> superseded by newer laws, even if they are still in force.  Even without
> the new law, many patent courts have, under the leadership of the EPO,
> been happy to twist Art 52 EPC into meaninglessness.

"many" is a bit exaggerated, since there aren't many patent courts.

Germany is the most well-cited example in the current EU discussion.

Here the Federal Court of Justice (BGH) opened the floodgates in 1992 with
the Seitenpuffer (side buffer) decision, by pointing to the EPO but trying
to justify its deviation from the law in a different way, e.g. by saying
that the claimed object included silicon chips or hardware which is not
part of a general-purpose computer program.  In the latest decision it
strengthened this distinction, said that Art 52 EPC must be interpreted in
a way that excludes a range of real patent applications, and encouraged
the lower Federal Patent Court to reject a spell-checking program
application as referring to a program as such.

The Federal Patent Court's 17th senate has been quite consistent in
rejecting software patents and citing Art 52 EPC correctly, but it has,
until the latest decision, been overruled by the BGH several times.

Dai Rees from EPO and McCarthy try to create the impression that not the
EPO but the national courts have been legalising software patents.  This
is not true.  Even the BGH waited for 6 years before it followed the EPO,
and it followed with some caution, trying to make its own sense of muddled
EPO doctrines which it found unusable.  Current BGH judges are rather
unhappy about the proposed codification of these EPO doctrines.

In most other countries, except Britain, there is very little, if any,
national caselaw to support swpat.  In France the latest major caselaw
is from the 70s and clearly rejects swpat by correctly interpreting the
EPC.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/