debugging McCarthy's FAQ

[Hartmut Pilch <phm@a2e.de>]

We need a debugged version of Arlene McCarthy's new FAQ.
Let me just debug the two paragraphs seen as crucial here:

> http://swpat.ffii.org/events/2003/europarl/05/contrib/amccarthy/index.en.html

> > What sort of programmes will the Directive cover?
> >  ------------------------------------------------
> > Thousands of patents have been granted by the European Patent Office
> > and by Member States' national offices for technical inventions which
> > involve computer programmes: currently as many as 15% of patents
> > granted involve software.

> > During this time all sectors of the software industry, including the
> > open source movement, have developed strongly. Patents are available
> > only for programmes that offer a new technical solution.

This is not an answer to the question, but only a collection of misleading
suggestions about EPO practise.  If this is to be taken as an answer to
the question at all, it means that the "all programmes patentable under
the EPO practise will be under the directive".

> > What sort of programmes will be excluded?
> >  ----------------------------------------
> > Programmes which produce an aesthetic outcome, components of
> > programmes (code sequences) which of themselves do not deliver any
> > technical solution, algorithms and underlying programming ideas will
> > not, as now, be patentable.

Since this refers to the current EPO practise and rhetoric, it excludes
nothing from patentability.

> > Programmes which underpin non-technical inventions will also not be
> > patentable, in particular those concerned with non-technical business
> > methods (such as "reverse auction" arrangements) along with the

This even suggests that some business methods are patentable.
Which is in fact the case at the EPO.

> > methods themselves. Although these are widely patented in the United
> > States, in Europe it has been shown that there to be no case for such
> > extension of patents in Europe.

There is no significant difference in patentability between EPO and USPTO.
As Beresford's book says, at the EPO 99% of the software and business
method patents pass the hurdle of "technical effect".

There is neither a case for the 1% which do not pass the hurdle nor for
the other 99% which Arlene McCarthy wants to legalise.

> > The EU directive should therefore provide a restrictive statement of
> > the law. Software programmes that produce merely an aesthetic outcome,
> > a component of programmes (code sequences) which themselves do not
> > offer a technical solution, algorithms, underlying programming ideas
> > and programmes that underpin non-technical inventions, should not be
> > patentable.

According to the current law (Art 52 EPC), programs for computers and
business methods are not patentable inventions.

If the current law is to be stated restrictively, one could also say that
"data processing is not a field of technology and innovations in the field
of data processing are not technical inventions", as proposed by CULT and
by JURI Amendment 46.

As said, we need a text which debugs the McCarthy statement paragraph by
paragraph in the above way.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/