That anti-patent pamphlet I mentioned

Xavi Drudis Ferran xdrudis at
Tue Dec 10 07:06:09 UTC 2002

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)

Xavi Drudis Ferran
xdrudis at

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