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

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

On 13 Nov 2006, at 17:49, Erik Josefsson wrote:

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

Also recently before the UKPO:

http://www.patent.gov.uk/patent/legal/decisions/2006/o22606.pdf


* Argument as to issues in common and the law

13 He referred me to the TRIPS Treaty, Article 27 of which requires  
that patents are available in all areas of technology.

...

* Decision on common issues and law

16 Taking first the issue of the TRIPS Agreement. The specific  
article of interest is Article 27 which concerns the range of subject  
matter for which patent  protection must be made available by  
signatories to the Agreement. The parts of Article 27 which Dr DeVile  
stressed in his presentation say (with his emboldening to emphasise  
the relevant words);

“patents shall be available for any inventions, whether products or  
processes, in all fields of technology, provided they are new,  
involve an
inventive step and are capable of industrial application.”; and

“patents shall be available and patent rights enjoyable without  
discrimination as to the place of invention, the field of technology  
and whether products are imported or locally produced.”

17 The TRIPS Agreement has not changed what is and is not patentable  
in the UK. It is a general principle that Treaties are not self  
enacting. Therefore any change in existing law that is to be  
introduced as a result of a treaty becoming effective need to be  
enacted in legislation. That the TRIPS Agreement is no exception to  
this principle was confirmed by Jacob J in Lenzing AG’s European  
Patent (UK)10, where he found that the Agreement has no direct effect.

In other words, the Agreement did not automatically override any  
existing law when it became effective on 1 January 1996. No  
amendments to the exclusions contained in section 1 of the Act have  
been deemed necessary following the coming into effect of the  
Agreement. I therefore do not feel that this argument is of relevance  
to my current task which is to decide whether the application in suit  
meets the requirements of the Patents Act.


Jonas

Jonas