That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Wed Dec 11 11:59:54 UTC 2002

Xavi Drudis Ferran wrote:
> 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.

Well, it excludes those computer programs that are not capable of
causing a further technical effect. For example, a computer program
implementing a business method is not patentable. Recently this was
confirmed in a Board of Appeals case T641/00.

> > 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.

Sorry, I do not understand you here. The EC is trying to harmonize EU
law. They are doing this on the basis of the European Patent
Convention, which is a treaty  entirely separate from the EU. They
could also have said "we're going to harmonize EU law based on US
patent law", for example.

> > 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

Well, as far as I understand it, everybody seems to be in agreement
that inventions should have technical character. The differences
occur over the definition of when something is technical. Nobody
wants purely non-technical software to be the subject of patents.

> > 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 seem to think that your interpretation of the law is the only one
possible. This seems a bit unfair. Don't you think it is possible
that others have a different interpretation of 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.

The Board of Appeals is entitled to provide an interpretation of the
EPC. What you seem to say is that their interpretation of the EPC
violates the EPC's original intent. This may be so, but since they
are the final arbiter, it is hard to point out what they are doing

> > 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

You're right. I was thinking the other way around.

EPC member states are
Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Ireland, Italy,
Liechtenstein, Luxembourg, Monaco, the Netherlands, Portugal,
Slovakia, Spain, Sweden, Switzerland, Turkey and the United Kingdom.

EU member states are
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland,
Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden, United

>  "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?.

Well, if you insist on your interpretation of the EPC, yes.

> > 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?

Sure. Personally I have always felt that the only rational way to
interpret this provision is that it excludes patents on the computer
programs themselves, but not on for example a machine programmed with
a particular piece of software. If the behavior exhibited by the
machine is patentable, then it should not make a difference whether
the behavior is caused by hardware or software. But making and
selling of the program separate from the machine should not be
patentable, just like making and selling a blueprint for the machine
should not be covered by patents.

> . 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. 

The big risk is that the patent owner will now start looking for
infringing products manufactured by us. After all, why would we
attack his patent if it meant nothing to us?

> Although it is expensive for a non threatened organisation to 
> do, except big players watching competitors stepping on their toes.

The opposition fee is not that much (EUR600, I believe). The big
costs are the costs needed for the patent attorney and the amount of
work you have to invest in a very short period of the time. And you
really need a European patent attorney to properly file an
opposition, since the law is very complex and it is very easy to
shoot down an opposition by a layperson purely on procedural grounds.

> 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?.

This is correct. That's why you should monitor newly issued patents
in fields in which you are active, so that you can decide whether to
oppose them or not.

> > 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. 

I'm speaking from the point of view of a hardware company who is
using a lot of software.

> 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?"

Absolutely! It makes no difference at all.

> 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. 

I disagree. But I don't think we can settle this different point of
view here and now.

> 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)

The EPO Guidelines are binding to no one except examiners. The
president can issue new Guidelines whenever he feels like it. I don't
think this is a very strong argument.

Kind regards,

Arnoud Engelfriet

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

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