That anti-patent pamphlet I mentioned

[Arnoud Galactus Engelfriet]

xdrudis at tinet.org wrote:
> > The guidelines you cite are based on a decision by the highest
> > entity within the EPO, the Technical Board of Appeal. They are
> > there to interpret the EPC. And if they say that something is
> > patentable, how can it be against the EPC? They *are* the
> > interpreter of the EPC.
> 
> Thanks for pointing it out. Am I wrong in believing that interpretation 
> is bound by the text you interpret, even if you are the highest board of
> appeals of the sacrest institution?. 

Well, there is no reason why you have to agree with the Board.
Feel free to disagree. They sometimes do issue incomprehensible
decisions, or even decisions that are on the face quite wrong.
But it's the same with the Supreme Court: if they say it's to
be yes, you can disagree all you want, but at the end of the
day it is still yes.

What I am trying to say is that if you argue it is illegal,
your opponents can easily score points by saying the BoA has
said it's not illegal, and they are appointed by the EPC to
make such interpretations. Just like with the Supreme Court.
If you say "it's illegal" and the SC has said it's legal,
the debate is much easier for those supporting legality.

> The EPO interpretation is
> inconsistent because it pretends the exclusion of programs "for computer
> programs as such" affect 0 computer programs, because depending on 
> how you write your application, any computer program can be patented
> (although one usually patents much more general things than computer
> programs, and a program is covered by several patents). 

This is correct, virtually all computer programs can be
covered by a patent claim if you can come up with some
effect that "goes beyond the normal interaction between
hardware and software". A computer program that computes
the value of a stock portfolio or that manages an electronic
auction is an example of an unpatentable program. You may
want to read
http://www.iusmentis.com/patents/businessmethods/epoexamples/EP1012764opposition.pdf
for an example on how to attack software patents (this is
an opposition my firm filed).

> > This is wrong, as there are many EPC patents that have been
> > successfully used against software products. Furthermore the
> > EPC isn't the EU, it's a totally different treaty.
> 
> The directive that would force national courts or the European Courts
> to enforce them affects only the EU. 

Correct. But keep the terminology right please. If you make
mistakes with the simple stuff, the other side can point out
those mistakes and argue that you don't know what you are 
talking about so you shouldn't be taken seriously.

> Precisely because some swpats have been enforced, and some have not, 
> their enforceability is dubious. If all had been enforced, or 
> all invalidated, it would be clear. But in fact it depends on the court.
> You never know if the interpretation of the judge will be the same
> as the EPO or what I can read in the EPC.

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.

> > RSA and the MPEG families of patents are examples of "software
> > patents" that make a lot of money. And why would big firms with
> > lots of lawyers and money pay large amounts of royalties ($2.50
> > per device for MPEG, for example) if the patents could easily
> > be declared invalid?
> 
> That's what I meant. Even software patents that cannot be invalidated
> through prior art (but should through subject matter) are harmful. 

Well, I was trying to argue that the existence of these patents
show that maybe it is not as obvious as you think that software
patents are invalid. If a big firm has the money, why would they
not simply let loose the lawyers to get those patents invalid
instead of paying royalties? For $2.50 a device with 9 million
devices you can do a lot of court cases.

> And I thank you for all your efforts to explain things. I agree we must 
> get the facts as right as possible. So please, keep on correcting us.

I'm glad you feel that way. It is always nice to see someone
who is genuinely interested in a serious debates on this topic.

Kind regards,

Arnoud Engelfriet

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/