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

[Erik Josefsson <ehj@cleosan.com>]

//I did not find this in my inbox. I apologize if I post twice.//
> On Tue, 2003-10-21 at 16:59, Gregory Aharonian wrote:
> > >and patenting software is explicitly prohibited in article 52.2 of
> > the EPC ... even though illegal EPO jurisprudence is trying to
> > distort the law.
> >
> > The EPC only prohibits patents on software "as such".  Since the EPC
> > says nothing on what "as such" means, the signers of the EPC left it
> > to the EPO to determine how to implement such a completely ambiguous
> > law.  EPO may have done so poorly in your eyes, but not illegally.

This is not true.

> I think what matter is the spirit of the law, not how skillfull you are
> in twisting words ...

Indeed. You find EPO/TBA-statements like "it could not have been the
intention of the legislator to exclude all software from 
patentability..." which is a shameful notion of EPO rewriting history 
_and_ twisting the words at the same time.

The juridical invention concept is the very fundament of patent law. It
has always been discussed to make sure the patent system maps on those
achievements where the monopoly/disclosure deal makes sense. To
systematially avoid that discussion is perverse (btw, at the hart of the
CEC/BSA directive proposal is exactly the new invention concept that the
patent industry has always asked for, which guarantees unlimited
patentability).

European Patent Convention states:

Art 52.2: Programs for computers shall not be regarded as inventions.

Swedish patent law wich was harmonized with EPC in 1973 says:

"That which only constitutes a computer program, is never regarded as an
invention."

("Såsom uppfinning anses aldrig vad som utgör enbart ett datorprogram.")


Now, what is "That"?

You get spinal replies from patent judges: "It is a teaching". Of course
the teaching should teach you something - it must contain knowledge. It 
is a basic requirement for the disclosure/monopoly-deal that the 
disclosure contains knowledge. It is embarrassingly basic.


That understood, the EPC version of "That which only constitutes" is:

Art 52.3 The provision "programs for computers shall not be regarded as
inventions" shall exclude patentability of programs for computers only 
to the extent to which a patent relates to programs for computers as such.

//Erik