Re: [Patents] The "as such" clause

[Hartmut Pilch <phm@a2e.de>]

> "(3) The provisions of paragraph 2 shall exclude patentability of the
> subject-matter or activities referred to in that provision only to the
> extent to which a European patent application or European patent relates
> to such subject-matter or activities as such. "
 
> To me this clause is saying that while inventions that include software
> are allowable, the patent application cannot extend patentability to the
> computer program itself.  I certainly think the EPO's broad
> interpretation on this is a step too far by any stretch of the
> imagination.
 
> Is this what everyone else thinks or do you have a different perspective
> of what this clause means?

Yes.

There is little doubt about this anywhere.  Even some pro-patent people 
have exclaimed that the EPO has "done violence to the wording of the law".

To those who know the context of patent claims, Art 52(3) becomes even
clearer.

It lets you derive the following test, which is found in the EPO
Examination Guidelines of 1978 in similar form:

Can the described novel teaching be claimed in the form

   computer program, characterised by that upon loading into memory
   of a general purpose data processing system XXX happens. 

If all the novel/inventive features of the claimed invention are found 
within the scope of this claim, then there is no invention in the sense of 
Art 52 EPC, regardless of whether you could dress the claim up as a 
process or as computer equipment running a process.

The Pettersson "invention" may not be a program as such in this sense, but
most of the patents that we care about are.

You might say that the Pettersson apparatus is not a general purpose data
processing system but a new combination of special hardware with
computers, but here again this combination is probably not all that new 
and does not involve any new insights in the field of natural science.
So here too probably all the novelty, if any, lies within the scope of the 
program claim.

-- 
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/