Drop Clause 3

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

I think we should tell the EPC to eliminate paragraph 3, for the reasons
detailed below.

Or if the pro-software patent forces start moving for changing the EPC, we
should say, "Sure, drop paragraph 3 until you address the real question."

I think it would be best to just do it ourselves.


> > > 3. The provisions of paragraph 2 of this Article shall exclude
> > > patentability of the subject matter or activities referred to in
> > > that provision only to the extent to which a patent application or
> > > patent relates to such subject matter or activities as such

> It says the law shall exclude software from patentability *only to the
> extent to which* (not "when") a claim or patent relates to software.
> 
> The key word in this clause is really "a" -- which designates that it is
> addressing the practical question of deciding the patentability of *a
> particular claim or case* with respect to the extent to which that instance
> relates to software.
> 
> The generality of the main clause (Software is excluded from patentability
> only to the following extent . . .) is reversed by the particularity of what
> it's talking about in the limit's it supposedly describing (the extent to
> which a[n individual] claim or patent relates to software).
> 
> "To the extent to which" is ambiguous in this framework because it lets the
> clause be parsed as either 1) "Software is excluded from patentability only
> as far as x" or 2) "In a particular claim, software is excluded from
> patentability only to the extent to which the claim relates to software as
> such."  Trying to take the first reading makes the whole clause nonsensical
> when you look at what x is (it then becomes a clause speaking in general
> about a limit that's expressed only in a particular way.).  The second
> reading, at the same time, is redundant and silly.

Seth

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