Re: RE : computer law seminar presentation about software patent at university

[Hartmut Pilch <phm@a2e.de>]

> Many thanks for all your comments and useful links. Indeed I meant the third
> paragraph of EPC 52. The EPC was signed by EU states in addition to other
> European countries but not the US of Japan. All the treaties under the WIPO
> only deal with the procedures to find prior art and to submit patents
> obtained in a country to other continents... But I did not find any WIPO
> treaties that bound US, Japan and EU about what can and what cannot be
> patented.

There is Art 27 TRIPs

        http://swpat.ffii.org/analysis/trips/

and WIPO is still negotiating the Substantive Patent Law Treaty

        http://swpat.ffii.org/papers/wipo-splt01/

which would impose unlimited patentability and strict limits on patent
quality worldwide.  The US delegation threatened to walk out of the
negotiations if words such as "technical" or "industrial" are used and it
is not made absolutely clear that they can no longer limit patentability.
See links at

        http://swpat.ffii.org/players/us/

> > > Third part is about the slow acceptance of software patents. I'm using
> > > Art 52 of the EPC. The fourth paragraph forbids software patents and
> > > business methods "as such", so if the software is part of an invention
> > > that produces technical effects, the whole can be patented. I have the
> > > feeling that the 'as such' is a major cause of troubles ...
>
> Indeed redundant clauses cause trouble.  To understand its redundance,
> look at the Munich Conference procedings, how the UK delegation pressed
> with FUD to dismantle Art 52 and was fed the 'as such' compromise by the
> german delegation.  It was enough for the UK to incompletely enact Art 52
> into their Patent Act (without an invention concept) and to keep on
> granting software and business method patents throughout the 70s and 80s.
>
>       http://swpat.ffii.org/papers/muckonf73/
>       http://swpat.ffii.org/players/uk/
>
> The 'as such' clause is however really only one of many possible
> pretexts which you can find if you want to dodge a law.
>
> Swedish and Thai patent law have the equivalent of Art 52(2) without the
> 'as such' clause, but patent lawyers there have found very similar
> argumentation patterns.  The patent community habitually creates, breaks
> and changes laws as it pleases.  If there is a consensus in that community
> or among its leaders, then they aren't concerned about laws.  That may be
> true of society in general, but there are few cases where one community is
> so closed to the outside and authoritarian in outlook as in that of the
> patent community.
>
> To understand explain how Art 52 should really work, quoting
>
>       http://swpat.ffii.org/papers/epo-t850022/
>
> is quite helpful.
>
> --
> 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/
>
>
>