[ Disregard if in a hurry. No question, just my understanding of the European machanics ;-]
Francois PELLEGRINI writes:
Indeed, if the EPO allowed the patenting of software, they would be in an illegitimate situation, since national laws have accepted the fact that software is not patentable. So they preferred to push forward the patenting of software in the European patent directive, to which european nations will have to comply and thus change their national laws to admit the patenting of software.
I discussed the subject with a friend yesterday. He is more litterate than I am in European things. I'll summarize what he said and I'll appreciate if you could tell me if it's correct:
The EPC is voted by government representative Then the EPC must be translated into laws in each countries (in france by the parliament for instance). The EPC is only active in a given country *after* it's translated therefore the EPC does not enter in action immediately and countries can refuse to apply it, although it's very unlikely
My friend told me that a number of international conventions were signed by government representatives and never applied because each parliament in each country refused to validate it.
The rationale is simple : the parliament makes the law, not the government representative who signs the convention. And since the EPC is legally binding, it makes sense.
It certainly makes things pretty complex for the EPO since the old EPC will be in action for some time before the EPC modified in Nov 2000 is in action everywhere.
Cheers,
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On Mon, 21 May 2001 loic@gnu.org wrote:
The EPC is only active in a given country *after* it's translated therefore the EPC does not enter in action immediately and countries can refuse to apply it, although it's very unlikely
Yes, but:
The situation is totally different for EU member countries. If the European Commission (backed by the EU parliament) puts out a new directive, then the member countries will *have to* make this national law as well. The EPC will - after that - be changed to reflect this situation (EU member countries cannot say they are against something which is their national law, so software patents will be allowed also by the EPC.... which will then probably influence non-EU countries as well).
That's how I see it (correct me if I am wrong).
sl, gpg - public key 0x1FE281EB karin "kyrah" kosina http://kyrah.net http://the.system.at +-----------------------------------><---------------------------------+ [ please sign the petition against software patents at ] [ http://petition.eurolinux.org ]
The EPC is only active in a given country *after* it's translated therefore the EPC does not enter in action immediately and countries can refuse to apply it, although it's very unlikely
Yes, but:
The situation is totally different for EU member countries. If the European Commission (backed by the EU parliament) puts out a new directive, then the member countries will *have to* make this national law as well. The EPC will - after that - be changed to reflect this situation (EU member countries cannot say they are against something which is their national law, so software patents will be allowed also by the EPC.... which will then probably influence non-EU countries as well).
That's how I see it (correct me if I am wrong).
You are wrong. The legal situation in the countries is exactly the same. All have copy&pasted Art 52 EPC into their national laws. There is no need of harmonisation. The only problem is that leading courts such as those of the EPO have disregarded the law or are interpreting it in a perverted and inconsistent way. Since the people at the European Commission are lawyers and the EPC courts are both an authority and the representative of their group interest, they want to make sure that the practise of the EPC courts is observed by all those national courts who currently still abide by the law or could possibly be seduced to abide by it and defy the EPO.
That is why we should be against any attempt at an EC directive on this subject, except perhaps one that restates the law as it stands and explains why the EPC interpretation is wrong, such as
http://swpat.ffii.org/stidi/eurili/ http://petition.eurolinux.org/consultation/ec-consult.pdf
But even there it is not urgent for us to have such a directive. A parliamentary resolution in that direction would be enough.
-- Hartmut Pilch Federation for a Free Information Infrastructure http://www.ffii.org/ For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/
Since the people at the European Commission are lawyers and the EPC courts are both an authority and the representative of their group interest, they want to make sure that the practise of the EPC courts is observed by all those national courts who currently still abide by the law or could possibly be seduced to abide by it and defy the EPO.
There are no "EPC courts". Not "EPC courts" but "EPO courts", more specifically "Technical Boards of Appeal". Sorry for creating confusion.
-- Hartmut Pilch Federation for a Free Information Infrastructure http://www.ffii.org/ For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/