Re: [Patents] newsscan: Software patent limits 'go too far'

[Jean-Baptiste Soufron <jbsoufron@free.fr>]

On Wed, 22 Oct 2003 14:13:17 +0100
Rui Miguel Seabra <rms@1407.org> wrote:

> They don't exist legally. They have been pushed by a careful
> subversion of EPC Art. 52.2:
> 
> http://swpat.ffii.org/analysis/invention/index.en.html
> 
> The current situation is laughable: software 'as such' seems to only
> exist inside one's head, not being 'as such' from the moment it's set
> on a computer.

I am sorry to tell that they exist legally as long as nobody has
attacked them in front of courts to prove that they don't exist. The
facts are that the EPO granted software patents and that nobody ever
tried to get them canceled. 

You say that they don't exist legally but you just mean that, in your
own view of the law, they don't exist. 

The problem is that you are not a judge nor the EPO. Then your opinion
about what the law should mean is absolutely pointless when it comes to
legal matters. The current situation is not laughable at all : people
have actually convinced the EPO to extent the scope of the exception.
The law is the way you make the text live and evolve, not only the text
itself or what was in the mind of the politics who wrote it! 

Don't take it wrong, I also think that these patents granted by the EPO
would not be valid in front of a court but you can't just assert it! The
new text is more clear on that point but the same exceptions are still
there and they will be used in the same way as long as we won't get
judges and politics to understand that there is a consensus about the
fact that softwares are not patentable. 

Jean-Baptiste Soufron
CNRS - CERSA Paris 2 Law University