That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Mon Dec 9 19:49:53 UTC 2002


xdrudis at wrote:
> > 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.
> I think that is the most pragmatic (and therefore correct) way 
> for a lawyer to think. But not for a citizen. Democracy rests on the 
> capability of the citizens to question whether what their institutions 
> say and do is right or not and then correcting them if it's wrong. 

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. 

> 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 understand you can be harder to attack by saying it is 
> undesirable, it is wrong or even it is perverse, and not saying 
> it is illegal. But being illegal is also a point, and I think 
> we should use it.

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. 

> Those institutions granting software patents 
> are not legitimated by the stablished law, they are only 
> legitimated by their own interpretation of the law. For me 
> there's a big difference. Specially when their interpretation 
> simply does not make sense. 

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

> 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?

> Speaking about legality here is part of the battle. Is claiming 
> that you cannot allow the law to be so twisted and reinterpreted 
> that you need high experts to understand it (or not even them), 
> people should be able to understand issues, at least with a resonable 
> effort, because in the end of the day it is us who are prohibited 
> from programming. So it is important when everybody except the 
> legal circles (and then only part of them) think something is not 
> legal.

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.

> 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.

> > for an example on how to attack software patents (this is
> > an opposition my firm filed).
> >
> Queued for printing and later reading. 

I welcome your opinion.

> > 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.
> I am lost here. I don't see where my terminology is wrong. 
> Can you correct my original text?. 

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
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?

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. :-)

> > 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.

> > 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.
> It depends on the case. Generally there is more than one patent 
> you must fight. In other case big companies, with big pockets 
> cross-license and don't pay so much, and in other case, I guess 
> we'll never know all the possible arrangements outside courts 
> than can be there. Possibly if you have a good enough case to 
> invalidate it you can choose a very cheap license from the patent 
> owner who does not want his patent invalidated or a much more expensive
> lawsuit. 

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.

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.

> Most software patents, though are not such a cash cow. 

Most patents in general are not cash cows. 

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

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