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Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

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Thursday, September 25, 2003

The situation the day after.

After having studied the result of yesterday's voting of the European Parliament I must say that the situation is much more worse than I had feared before. The gist of what the directive says is that preferably no patents should be granted on anything that is related to computers, and if under some narrow preconditions exceptionally a patent is ever granted there are such burdens put upon the applicant that it would be rendered virtually worthless. For example, Article 2, point (bb) of the Directive now narrows the term "industry" to the "automated production of material goods". This is simply absurd. Even worse, Article 5 of the Directive as amended by the European Parliament now requires that "Member States shall ensure that whenever a patent claim names features that imply the use of a computer program, a well-functioning and well documented reference implementation of such a program shall be published as a part of description without any restricting licensing terms." Any patent professional with a minimum of experience in this field knows that this provision is not only an undue burden on the applicant but also simply unworkable. I could give more examples but I recommend to study the full list of adopted amendments linked in my posting earlier this day.

The Eurolinux activists clearly have overshot their mark: They have managed to bring so many of their preferred amendments in a redundant, self-contradictory and amateurish fashion into the wording of the Directive that every person skilled in IP law recognises without need for further explanation or persuasion that the text as amended by the Parliament is rubbish. This will clearly help the EU Commission as well as the EU Council to move this version into the trash bin. Also it can be expected that the U.S. would start formal WTO proceedings against the EU due to violation of Article 27 of the TRIPS agreement if the EU Council should be trapped so much in bewilderment that they eventually conclude to allow this amended draft to enter into force.

The misinformation campaign staged by the Eurolinux Alliance is really horrendous. The most abhorrent but nevertheless successful tactics instrumentalised by FFII e.V. was the allegation repeated again and again that in particular the EPO has granted tens of thousands of so-called "software patents" (i.e. patents on computer-implemented inventions) in contradiction to the law as it is codified by the European Patent Convention (EPC). But there is no provision in the EPC that would prevent such patents on computer-implemented inventions. Article 52 of the EPC only bans patenting of programs for computers "as such" (whatever that precisely might be). Moreover, and most decisive, the competent Boards of Appeal of the EPO which enjoy the legal independence and status of a court have repeatedly dealt with that question, expressively allowing such patents to some extent. Hence, a corpus of lawful case law exists properly defining the limits of patentability under the current regime of the EPC. In turn, the allegations made by Eurolinux at least implicitly mean that the officers of the EPO would be guilty of perversion of justice. This is completely nonsense. The wording of Article 52 EPC is indeed somewhat unclear in particular in the paragraphs 2 and 3, and there is no argument for excluding the current status of the EPO case law from the status of legitimate interpretation of that codified law by competent judges populating the Boards of Appeal.

A very sad fact, however, is that the general public and in particular some prominent broadsheet newspapers were taken in by that propagandistic disinformation campaign. Contrary to the assertions again and again made by Eurolinux, the original draft Directive as proposed by the commission never intended to "open the floodgates" for "software patents", to "legalise" vast numbers of patents already validly issued by the EPO, or the like. The truth is that the EU Commission only had intended to preserve and codify some "status quo" reached by the practice of the Boards of Appeal of the EPO.

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