[ILUG] ILUG sends s/w patents briefing document to Irish MEPs
david.golden at unison.ie
Wed Mar 16 23:28:42 GMT 2005
> It is my understanding that both the EPO and several member
> states have already interpretated both member state law and the EU
> Convention on Patents in such a way as to allow certain kinds of
> software patents.
That's why their "but but but we're only codifying current patent
office practice" is such an incorrect and dangerous argument: the
current practice of the EPO runs counter to what e.g. I as a european
citizen would regard reasonable reading of the current european law.
The EPO is out of control, explicitly considers itself _above_ european
law, and needs to be reined in, basically.
Beware quoting the commision's opinion on the matter: they are far from
an unbiased body. But you're "right": counter to what a naive
programmer might expect from the pretty plainly worded current law
(article 53 of the European Patent Convention of 1973 - see [ref. 1]
below ), the EPO and the patent offices of certain member states have
effectively been acting as if software patents were allowed.
But this has not been tested in court for the most part AFAIK, it's only
the patent bureaucracy's documented and deliberate reinterpretation of
the law to maximize patent lawyer profit - history at .
And the corporations are afraid to test that in court, because right now
the law is pretty clear that software CAN'T be patented, despite the
patent bureaucracy just sort of assuming it has the authority to decide
it can be
With the new directive, they'd suddenly be able to quote a new law*
supporting their position and their 30K currently basically
unenforceable software patents - instead of their current deeply
suspect argument, which is along the lines of:
We the patent office, having failed to delete exceptions in Art 52
silently and without public scrutiny back in the 90s, hereby interpret
"as such" in Art. 52(3) with reference to Art. 52(1)c to mean
software on its own, when not running on a computer.
For some reason, the corpies are pretty afraid to test in court the
EPO's argument. That's also why they try to shift debate to "what is
a technical contribution" rather than "should software patents exist at
* and quoting law is more powerful in civil law jurisdictions of
continental europe than common law jurisdictions like Ireland and
England, where precedent is more important.
Personally, I disagree with all patent law - I don't see why anyone
should have the right to stop me building stuff. whether it's similar
to what someone else is doing or otherwise, not do I seek to restrict
others building stuff. Patent law should only apply to patent
[ref. 1] http://www.european-patent-office.org/legal/epc/e/ar52.html#A52
(1) European patents shall be granted for any inventions which are
susceptible of industrial application, which are new and which involve
an inventive step.
(2) The following in particular shall not be regarded as inventions
within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games
or doing business, and programs for computers;
(d) presentations of information.
(3) The provisions of paragraph 2 shall exclude patentability of the
subject-matter or activities referred to in that provision only to the
extent to which a European patent application or European patent
relates to such subject-matter or activities as such.
(4) Methods for treatment of the human or animal body by surgery or
therapy and diagnostic methods practised on the human or animal body
shall not be regarded as inventions which are susceptible of industrial
application within the meaning of paragraph 1. This provision shall not
apply to products, in particular substances or compositions, for use in
any of these methods.
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