[ILUG] ILUG sends s/w patents briefing document to Irish MEPs

[David Golden]

> 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[1]. 

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 [2].  

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 
all".


* 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 
holders.



[ref. 1] http://www.european-patent-office.org/legal/epc/e/ar52.html#A52

Article 52
  Patentable inventions 

(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.


[ref. 2]

http://swpat.ffii.org/log/intro/index.en.html#reskr