That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Wed Dec 11 12:32:36 UTC 2002

Marcus Brinkmann wrote:
> On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
> > 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 it is very important to reject the interpretation and any efforts to
> be dragged into a bottomless discussion of what the law might say.  The law
> is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.

The law is not very clear, because of that "as such" restriction in
52(3). What the heck does that mean? If it doesn't mean anything, why
is it there?

> Don't make it appear as if there was any confusion about what is software
> and what is technical.  This discussion has already happened in the 50s,
> 60s, 70s at lengths.  In the words of the German Federal Court of Justice
> (BGH) in its famous Dispositionsprogramm decision of 1976 (translation by
> Hartmut Pilch):

The fact that the German Federal Court of Justice has explicitly
abandoned this interpretation in more recent decisions shows that the
subject is still open for debate. Is it not possible for people, even
Supreme Court justices, to change their views on what is patentable?

> > 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.
> This is a very twisted way to look at the situation.  The 1970s situation is
> what the law is today.  It is also what TRIPS demands.  It is what every
> law scholars advise.

TRIPS demands patents in all fields of technology. Excluding
software-based implementations from patent protection violates TRIPS.

> Please give me one example of a software patent (or claim thereof) where a
> program should be patentable because it has a further technical effect just
> like a hardware invention needs to do.  Just one example, and don't forget
> to describe what the technical effect is, in normal language that can be
> understood by the people here on the list.

This question is impossible to answer, since we haven't defined what
a technical effect is. I can quote you patents with potential
software embodiments that achieve effects such as a faster working of
the machine, a higher accuracy of fuel usage in a car engine, a
better measuring of data, reduced storage capacity for a signal to be
recorded and so on. Are such effects "technical"? In my opinion yes,
but what about you?

> > 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.
> I want to see one middle size company which goes ahead and sues IBM or
> Microsoft over an alleged patent violation.  Of course, it is also the small
> companies and last but not least the free software programmers.

Is Intertrust "middle-sized"?

Is Eolas "middle-sized"?

Is Priceline "middle-sized"?,4586,2353458,00.html

Is AT&T "middle-sized"?

They all sued Microsoft for patent infringement.

Kind regards,

Arnoud Engelfriet

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

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