That anti-patent pamphlet I mentioned
xdrudis at tinet.org
xdrudis at tinet.org
Wed Dec 11 12:40:46 UTC 2002
> > 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 think this is only a matter of claim wording.
You are basically saying, to use an analogy from the FFII, I think,
3 EUR + 3 EUR = 6 EUR
is not patentable, because it handles no technical data
3 l of fuel + 3 l of fuel = 6 l of fuel
is patentable because it is technical.
This is impossible for me as a programmer to understand since the
exact same program perfoms both functions. If you prohibit (monopolize)
one you prohibit the other, and anything that solves the problem
would be usable for fuel and therefore infringe.
> > 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.
The law they pretend to harmonize covers the same matter and territory
(or subset of it) than the law the EPO should be following. If the
EPO was following the EPC, there would be no need to wellcome
harmonization of EU law with the EPC.
> 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.
Sweetman, a british SME manager asked at the EuroParl for an example
of a program that could not be constrained to have a technical effect
under EPO doctrine because he had tried for 6 months to understand it
and did not see one, and nobody answered, including 2 EPO officials.
The cases you present are not of unpatentable programs, I would say,
but of applications worded in the wrong way for the EPO to grant the
patent. Another wording for the same thign could be patentable.
> > 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?
My interpretation of the EPC is not the only possible, but until
someone shows me a _consistent_ intepretation of the EPC that
justifies EPO practice, I am entitled to belive it is unjustified
by the EPC.
> 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
It violates the EPC letter. THey follow the EPC where it says
they are to decide, but don't follow it where it says what is patentable.
> > "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.
I do. Thank you.
> > 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
This sounds absurd to me. A patent prohibits use of an "invention". The
main use of software is by programming a machine with it.
If you can't patent the program but can patent any machine programmed
to use it, then nobody can use a machine programmed with the program,
so nobody can use the program, so the effect is the same as patenting
the program, except for marginal uses (as an expressive work, or
as mere transmitted ifnormation).
If waht you propose is not patenting _any_ machine programmed
with the software, then it is only fair to apply novelty and inventive
step to the machine, not the software. So the software should
make no difference in whether a machine can be patented or not, and
patenting a general computer programmed such that so and so should
not be accepted.
> 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.
But if the only innovation is in the software, the machine should
not be patentable. I have no problem patenting analogical sound filters
but once you discover you can apply a Fourier Trnasform and do that in
a DSP, you have already solved a whole range of problems. Maybe the
DAC or ADC converter could be patented, but the math and logic you then
apply to the signal is no different from business logic, and should
not merit a patent. Programming a filter in a DSP is just the normal
use of the DSP, and therefore not inventive.
So what is important is the teaching in the patent.
> 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?
I was comparing risk of opposition with risks of invalidating in a
court when sued with respect to license agreements. I wasn't comparing
with the option of keeping silent.
> > 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 meant including the attorney fees.
> > 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
> > 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.
And that's why this system rules out SMEs from intellectual activity
> > The solution is possibly that none of those gadgets should be
> > because implemented in bits or silicon, their contribution is
> > 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
> > applying available knowledge to a problem.
> I disagree. But I don't think we can settle this different point of
> view here and now.
Possibly. Sorry if I insist too much.
> > 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.
My argument is the President can not decide tomorrow that the EPO
is going to grant patent of sexual intercourse positions. What the
president decides must respect the EPC. Since the guidelines of
1978 respected the same EPC as we have now, reinstating them would
be consistent with the EPC. More consistent than current guidelines.
And I think it is important to have the EPO practice, the EPC, the EU,
laws in the same line. Now it is no because the EPO does not follow the
EPC. The solution if changing what the EPO does, not the rest.
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