Re: [Patents] draft call on europe's lawmakers

[Erik Josefsson <ehj@ffii.org>]

PILCH Hartmut wrote:
> > Don't you think you should lead a fight to call for the repeal of this
> > clause of TRIPS?
>
> Not really, see
>
>     http://swpat.ffii.org/analysis/trips/
>
> There is much to be criticized about putting patents into TRIPs, and at
>
>       http://a2e.de/ffii/06/09/patent/
>
> I even argue that we should get out of that part of TRIPs, so as to gain back
> the freedom to abolish or profoundly reform the patent system.  But just for
> the sake of disallowing software patents that is, imho and in the opinion of
> quite a few law scholars at least, not necessary.

Here is a badly translated quote from a Swedish verdict against this patent:

http://v3.espacenet.com/textdoc?IDX=WO0028449&CY=ep&LG=en&DB=EPODOC

   "As pointed out by the plaintiff, Sweden is bound to follow the rules
   in the TRIPS agreement since it joined the WTO in 1995. What's
   relevant to this case is that article 27 (1) says that the
   possibility to get a patent should be available for every invention
   in any technical field. This decision has not made any change in § 1
   PL necessary. Neither article 27 (1) nor any other part of the
   agreement gives a legal definition of the concept "invention." There
   is no explanation of what is supposed to be considered a "technical"
   field, in this regard and for background on the article see Joseph
   Straus in GRUR Int. 1996 p. 179: "Bedeutung des TRIPS für das
   Patentrecht", part V b) iii, items 35 to 37, in which the
   relationship to article 52 in the EPC is also discussed.

   The adaptation of article 52(1) EPC to the wording in article 27(1)
   in TRIPS, agreed upon at the November 2000 diplomatic conference of
   revision of the EPC is not considered a change in the legal situation
   (see OJ EPO 2001, Special edition no. 4, p. 135 (item 6)) but only a
   clarification that the patent obligation is only applied to
   inventions in a technical field.

   Since the German patent legislation was adapted to the TRIPS
   agreement, the German Supreme court has stated that the article 27(1)
   hasn't change the legal situation (see the decision in the case
   "Logikverifikation", available in an English translation in IIC 2002,
   p. 231, II.4.d). Nor has the European Commission in its draft
   (published February 20, 2002) for a directive on computer related
   inventions (KOM (2002) 92 final) - which in particular aims for a
   division of patentability for computerized methods for business -
   come to another conclusion about the meanings of the TRIPS article.

   The reason above leads to the conclusion that article 27(1) of the
   TRIPS-treaty does not induce a change of application of justice in
   the case."

So, Greg's argument has been used, and rejected, in Sweden.

//Erik