David O'Callaghan david.ocallaghan@cs.tcd.ie writes:
On Thu, 2005-03-31 at 14:13 +0100, Ciaran O'Riordan wrote:
She found it difficult to understand the current situation where by software patents are not valid but 30,000 have been granted.
As I understand it these patents have actually been granted and would be considered valid in law unless they were overturned.
Those patents have been granted, but that only means a civil servant (not a law maker) following the EPO's application guidelines (not a legal document), has signed off saying there's a good chance this patent is enforceable.
Whether it is or not, and whether it can be infringed by writing software (otherwise it would be valid by toothless), is for a judge to decide.
IMO, Art 52 of the EPC clearly excludes software ideas from patentability.
Why have the EPO been granting these patents? Maybe they caved to pressure from patent wantees? (they make money on every patent granted, not rejected) Maybe they want their area of control to be as large as possible?
She didn't like the issue being painted as big business Vs. small
What was her objection to this?
It's too easy to paint things that way and then ask politicians to support the small guy - when doing the right thing is the politicians real job.
Article 10 could even be interpreted as saying that allowing software patents would actually violate TRIPS
I think this is a pretty tenuous argument. As much as I detest TRIPS I don't think it clearly excludes computer programs from patentability.
I agree. (the key word above being "clearly") Which is why I ended:
But we don't have to go that far to see that it is false to claim that TRIPS requires software patents.
I also think TRIPS doesn't clearly require software patents.