El Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet deia:
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
Saying an exclusion clause excludes nothing is against the letter of the law, I'd say. It is ignoring what is written, not infering or failingto infer anything fancy.
To paraphrase you: I can disagree with the Supreme Court all I want, but if we all disagree,at the end of the week, it will be no, and maybe someone else will sit in the Supreme Court.
You should go to the legislature to get a bad law changed. A court can only uphold the law, and it is wrong for a court to go against the law even if the law is wrong.
I didn't explain it right or something. I meant you can also go to the legislature to have wrong judges changed. This stems from my idea that the law is not wrong (though it could be better maybe) and the EPO interpretation is absurd.
Well, from my point of view the interpretation of the BoA is not an illegal one. It is very peculiar and seems to fly in the face of the EPC, but they *can* do that.
Again, it ignores what is written.
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
I think there are jurists also who call it illegal, but I'd have to dig for the references and I don't have time right now.
In the Nov 7th hearing ini the European Parliament, there were two speakers from the EPO. One insisted what they did was not illegal. The other wellcome the harmonization of the law with the practice of the EPO. In my book this means the pratice of the EPO is divergent with the current law.
I can very well understand their position though. They think the BoA is doing something consistent with the EPC, and they want harmonization on the basis of their current practice. The end result would be that the IBM decisions become EU law. This may be undesirable to you, but it doesn't seem inconsistent?
Sorry, harmonization of law on the basis of their practice means their practice does not follow the law. Am I being thick?. Saying something that implies they don't follow the law, and saying their acting legaly is inconsistent.
This is a very good point. Unfortunately it can also be used to argue that 52(2) and (3) should be taken out of the EPC, since they're a dead letter. Today's information society requires broad protection, even for computer-implemented inventions, and then there's no place for antique views on patentability. Then the programmers will also understand what the possibilities are.
Well, that would be a bad outcome, but it _would_ be more consistent. If they want to push that, though, they'll have to be much less under cover and justify that protection is really needed and the affected people wants it. They'll have a much harder fight. I see no politician buying that. Even the most pro-swpat people claim they don't want to patent all software like in the USA. They'd have a hard time claiming that while deleting "computer programs" from EPC 52.2
And it is important to note that we are not advocating a change in law, but the pro-swpat camp is. We just want the current law to be observed in a much more rational way than it is currently.
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
They want to keep the practice, I want to keep the law. You cannot understand that, of course, if you think their practice is legal. But I don't think the Technical Board of Appeals is entitled to go agaisnt the letter of the EPC who created the TBA itself. Btw, I think there's an Enlarged Board of Appeals that should have been used and hasn't. But again, no time now to dig for refrences, remind me later.
You wrote in your earlier mail:
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned since 1973 and those issuing from the mid-1980s being of dubiious enforceability."
There is no EU patent law right now, and I thought that in this sentence you suggested there was. Maybe you should make
No, there will be in 2003 if we don't stop it.
the distinction more clear. The interpretation of the law as devised by the BoA of the EPO is now being forced upon the EU member states, even though the BoA is no law-making institute. Furthermore, not all EU member states are EPC contracting states. How's that for democracy?
Which EU member state is not in the EPC ? I thought they were the 15 EU members + 9 or 10
Ehm, so you were not wrong is what I wanted to say. :) It's just a very common mistake to make. So please take the above quote from me as a tip, not a correction. :-)
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned by the EPC since 1973 and those issuing from the mid-1980s from the EPO being of dubiious enforceability."
Is it now more clear?.
Lots of national courts appear to be following the EPO's BoA. The German supreme court quite recently did (in their Speech analysis program case) by deciding computer programs are patentable in Germany.
There is also the 17th senate that does not agree in that software is patentable, I believe. I've heard there are cases in one sense and another. But possibly we should come down to too much detail to find out.
Can you please tell me what the 17th senate is? I was at an EPO conference a few weeks ago, and a member of the German patent office presented to us the German case law. From this I got the impression the general view in Germany is what the BGH said.
I need to find references. I think it is called BGH17 in German, but I don't speak German. Sorry. There is also an interesting case in Poland, I think, though Poland is not yet in the EU (nor the EPC, I think).
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares. But that only works for really clear-cut cases, like when you have a publication describing all of the invention. If it is debatable, you don't want to end up in court since you may lose.
And the EPO interpretation of EPC 52.2 is possibly debatable according to you?. In fact the opposition you sent us (I'll still have to read it...) is much cheaper than one of these lawsuits, and less risky that the case when you are being threatened. Although it is expensive for a non threatened organisation to do, except big players watching competitors stepping on their toes. I think you can only oppose in the first 9 months after the patent issues, though, so it is not a general solution when you're under threat since they won't attack you until after 9 months. Is it so?.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
That's hardware companies living on software, who think that, not software companies.
The solution is possibly that none of those gadgets should be patentable, because implemented in bits or silicon, their contribution is mere logic, not in a field of technology. You should not ask "Is there something new here? Is this hardware or software?" But, "what is new in here teaches us something on repeatabe use of controllable forces of nature ", software, firmware or logical circuit design (VHDL) teaches us nothing of this kind, is only applying available knowledge to a problem. Some other hardware achievements do teach us something and should possibly be patentable. That includes for instance a new transistor, or even some pattern or material to lay out circuits so that they dissipate less heat when it wasn't previously known that effect or in general thing that need laboratories and experimentation.
This should be consistent with the EPC since it is rougly the approach of the 1978 EPO guidelines based on the same EPC (at least art 52 is unchanged, IIRC)