Re: [Patents] Munich convention 2005-10-05 says no programs can be patented : why no go to court with european office for patents ?

[Jonas Maebe <jonas.maebe@ugent.be>]

On 17 mrt 2005, at 16:26, Kristoff Bonne wrote:

> > The European Patent Office *is* the governments. It is rules by the 
> > Administrative Council, on which representatives sit from all 
> > countries which subscribe to the European Patent Convention.
>
> So, what to do? Sue your own gouvernement and force it to sue the EPO?

a) get a good directive from the EU, since all patents have to be 
enforced in national courts and if these kinds of patents stand no 
chance of being enforced, companies will be quite reluctant to acquire 
them
b) pressure the national governments to take action with their 
representatives in the administrative Council (although they'll 
probably come up with the excuse that they can't do anything on their 
own)

Note that the actual broadening of patentability is performed by the 
(supposedly?) independent Technical Board of Appeals, and I don't know 
exactly how they are held accountable (or even whether they are held 
accountable). The people in the Administrative Council are in theory 
accountable their the respective governments, but in practice they are 
most of the time the people that create the national patent policy, so 
they are basically only accountable to themselves and their colleagues.

I do not know whether the EPO itself could be sued, who could do that, 
on which basis this would be possible (after all, they do have the 
power to interpret the European Patent Convention, although they are 
supposed to do so with the best interest of society in mind and to do 
it in the spirit of the law) and at which court this would happen.

Regarding the spirit of the law, a recently published legal-economic 
study at the 5th European Policy on Intellectual Property conference 
argued the Commission proposal merely codifies the EPO practice, and 
that the only consistent interpretation of their rules is a de facto 
deletion of articles 52(2) and 52(3) from the European Patent 
Convention.

The author derides their text because it does this in very unclear 
ways, resulting only in more legal uncertainty, rather than more (i.e., 
she argues they should simply state what they want in unambiguous 
terms). Apart from that, she thinks software patents are not a good 
idea either, but that's a separate issue. On the other hand, she 
congratulates the EP because they are much clearer about their 
intentions, even though she doesn't completely like the content of 
their solution either.

You can find a summary of the paper (as well as a link to the full 
paper) at http://wiki.ffii.org/Rossi050310En


Jonas