Gregnews rants about UK anti-swpat decisions

[PILCH Hartmut <phm@a2e.de>]

GregNews

     http://swpat.ffii.org/players/aharonian

has published some responses from readers to his latest rants about
"unscientific" decisions by UK judges to construe Art 52 EPC in a
way so that it actually excludes something.

From the dialog it appears that Greg's claim to be interpreting laws on the
basis of "scientific definitions" is gradually irritating his own patent
lawyer audience.

Here are some extracts:

----------------

[FROM A UK IP PROFESSOR]

  [...]

  I remember a patent agent when asked to define a technical effect said
  "I can't tell you what an inventive step is but if there is one I can
  feel it in my water!"

  Robin Jacob is normally pretty sensible so I'll have to read the judgement
  and think about it.

[FROM A GERMANY-BASED IP LAWYER, three emails from him as part of an
argument we were having.]
 
        More aspects to factor in, when reflecting on the full text of the 
Decision:

        1. The EU Parliament is making a big song and dance (ever louder) 
about
        having ALL computer-implemented inventions Statute-barred from
        patentability. Europe is a democracy, and what the EU Parliament wants
        cannot be dismissed as of no consequence. As has been argued 
elsewhere,
        countries falling behind the pace of technological development begin 
to
        develop an aversion to effective patent rights. 

        [...]

        3.  England is common law territory.  The judge can't go off and do 
his
        own research, however much you would have wished that he had done.  
He has
        to decide on the evidence. Are you calling the UKPTO stupid, for not
        arguing to him that it should be possible to patent a iPod with a new
        and inventive melody on it? 

            [Greg note: "scientifically stupid", YES.  Management at the UK
            Patent Office (hi guys!!!), much like the management at the US
            Patent Office, is completely apathetic to how developments in
            science and engineering in the last twenty years open up new
            areas (such as the arts) to patenting because such arts are
            increasingly becoming more technical, more industrial, more
            functional, more structural.  I have given up volunteering to
            give lectures on this subject to either patent office - they
            just don't care about aligning patent science policy with ...
            science.]


        4.  Maybe the EPC was "badly written" but it seems OK to me. There 
always
        will be a difficult line between patentability and what is not.  The 
UK
        Parliamentry Draftsman used to tidy up EU Statutes when putting
        corresponding Bills through the UK Parliament, but that just caused 
more
        confusion so we don't do it any more.  Read Aerotel to learn more.  
Read
        there what are the French and German versions of the term "business
        method".  They have equal weight with the English text.

        Robin Jacob writes nice Decisions. Have fun spotting the areas where 
he
        deliberately chooses not to air the subject (I guess for "political"
        reasons). But do not label him stupid please.   

            [Greg note: much like patent offices management, there is much 
about
            science and semantics Robin Jacob does not know about, or 
deliberately
            ignores.  Calling him "stupid" is more complimentary than what 
such
            contempt for science should be called.]

                                           ==========

        Just read your revised, polite critique of Aerotel.

        In Jacob, para 16, I think the the TRIPS point "doesn't arise" because
        the Court of Appeal was not asked to examine a lower court's decision 
for
        compliance with TRIPS, but just to examine it for compliance with the 
EPC.
        Again, I think Jacob did what he thought was necessary, but held back 
from
        doing more, for the reason I give below.

            [Greg note: fine, I will file my own boundary pushing patent app 
at
            the UKPO, and I will raise TRIPS, amongst other things.]

        The way I see it, the EPC Art 52 exclusions are easy enough to 
construe.
        We can see now, that Aerotel falls clearly one side of the line, and
        Macrossan clearly the other side.

            [Greg note: I completely disagree.  The line drawn in Aerotel is
            the "technical" line, and nowhere is "technical" defined for
            anyone to see where the line is.  And as long as "as such" goes
            undefined in Article 52, Article 52 is not eash to construe,
            other than as legislative nonsense.]

        The EPO will now say ... 

            "What does England know?  At our higher level, cases are much more
            borderline." 

        ... but that's only because they don't see the issues as sharply as
        Robin Jacob.  Whether the Art 52 exclusions make sense is another 
matter
        entirely. Over to you.

[...]

        Reflecting overnight, I think Jacob deliberately avoids defining 
"business
        method", for a good positive reason. Judges who hand down definitions 
of
        statutory terms go down in history as having obstructed smooth 
development
        of the law.

[...]

        In UK a Statute is "always speaking". The House of Lords (Hoffmann) 
used 
        this recently, in a DNA case, to get to a sensible result. Giving a 
2006
        definition will clash with what people in 2009 think a business 
method is.

        The current question is always: what does the Court think the 
legislator
        was using the language of the Statute to mean?

            [Greg note: why should scientifically illiterate judges be allowed
            to determine the meaning of a scientific statute written by
            scientifically illiterate legislators?  That is the height of
            unjust.]

--
 Hartmut Pilch                            http://a2e.de/phm
 Vice president of the FFII               http://a2e.de/ffii
 Protecting the Knowledge Economy from Legal Over-Regulation