Re: Fwd: propriété industrielle ( semi naire, le 25 03 04, Bruxelles)

[Hartmut Pilch <phm@a2e.de>]

Thread moved here from another list:

> Let me summarize what I understood. The rules of the European Patent
> Convention (EPC) apply to the EPO and nothing else dictates instructions
> to the EPO, because the EPC is an international treaty and our countries
> signed it.

The EPC dictates nothing to the EPO.  The EPO does what it wants and finds 
ways to explain this in terms of the EPC. 

The jurisdiction of each country decides on the basis of national law
which is largely identical to the EPC.  The countries are bound to this 
law, not to the practise of the EPO.
 
> The European Parliament together with the Council decides directives
> that will become "laws" in our countries, but a new directive does not
> change an international treaty signed by the member states.

> Do you know whether the EPC allows the different countries to define
> their own rules about what is patentable?

The countries must abide by the rules set by the EPC.  They can define 
more rules, as long as these do not contradict those of the EPC.

> Or, are we in such a position that, in the best case, we will end with a
> contradiction between these "laws" and an international treaty and that
> judges will have to define a jurisprudence (case law) ?

In the best case the directive will just explain Art 52 EPC so that there 
is no contradiction.

This can of course not be said about the proposals of the Commission and 
the Council.   See also 

        Melullis comments on CEC proposal
        http://swpat.ffii.org/papers/melullis02/

He is the presiding judge of the patent senate of the german federal court
and one of many who point out that CEC proposal is incompatible with Art
52 EPC.  And that, of course, is not acceptable.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/