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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Monday, August 29, 2005Summer Break is Over: Rows over Patentability of CIIs Continue.Mr. Florian Müller writes:"EUOBSERVER / COMMENT - After the lobbying frenzy in the build-up to the 6 July vote on software patents, MEPs must have needed this year's summer break even more than usual.The purpose of the failed EU Directive process was to harmonise the rules for granting patents on computer-implemented inventions ("CIIs") across the EU, not to legalise them. Patents on CIIs are, in general, already perfectly legal under the European Patent Convention ("EPC") as well as under the various national patent laws of the EU Member States. "Many computer programmers are afraid that software patents can be used against them by larger competitors and product less entities, and point out that today's largest software companies became what they are without owning a single patent for many years.Ha! "Abolitionist Amendments" is a quite good language indicating in an uncensored way the very purpose for which the proposed 21+ anti-patenting amendments were drafted for. They were drafted in order to abolish granting of all patents which might, on the infringement side, potentially be used against (commercial) tinkering with software. The EU Commission's Draft Directive was not drafted in an abolitionist mood but to codify a set of harmonised rules on the basis of a snapshot of certain Case Law of the Boards of Appeal of the European Patent Office ("EPO"). "In February, the parliament asked the European Commission to restart this legislative process, but that request was declined. On 6 July, 95 percent of MEPs present rejected the common position and thereby finished the legislative process off.Oh, no. Mr. Müller might be well aware that Article 52 EPC only bans patents on computer software as such. It is established case law across Europe that granting patents on CIIs in general does not violate Article 52 EPC or corresponding rules in the applicable national patent law. If patents on CIIs were granted lacking novelty and/or inventive step they should, of course, be cancelled by the Boards of Appeal or by the respective competent national Courts. So far there is no difference to other kinds of patents. "However, the European Patent Office and national patent systems keep issuing patents against the law."The same old myth again, over and over repeated by proponents of the anti-patent movement, but there is certainly no truth therein. The EPC is interpreted authoritatively by the Boards of Appeal, and, in certain cases, by national Courts. They have, from time to time and on a case-by-case basis, cancelled patents on CIIs previously granted by the EPO because of insufficient technikcality, novelty and/or inventive step but they never have said that patents on CIIs are inadmissible in general. "National courts, such as the British High Court in the recent Halliburton vs. Smith case or the German Bundesgerichtshof with its natural forces doctrine, declare such software patents invalid within their respective jurisdictions."Mr. Müller, would you please be so kind and read the Case Law? Of course, from time to time the Courts cancel patents on CIIs on various reasons like lack of novelty or insufficient disclosure of the invention but there is no Case Law banning patenting of CIIs in general. "However, until they are invalidated, patents can be used to intimidate the innocent.So, Mr. Müller continues to propagate the theory that the Boards of Appeal as well as other patents Courts are "bending the law"? What should be, according to Mr. Müller, be the consequences? He seems to be silent on that question. But it might not come as a surprise if he would in fact think that those judges should be evicted from their Offices and replaced by more biased anti-patent individuals. "Shortly before the second reading vote, 21 amendments were proposed that could really serve as a beacon for software patentability worldwide. Those amendments came from several groups, and from long lists of signatories within other groups.Wet dreams of a revolutionary take-over of the EPO by anti-patent forces? "The administrative council of the EPO, to which the resolution would be forwarded, holds all the power. That council elects the president of the EPO, approves the EPO's internal guidelines, and appoints judges to the EPO's in-house courts ('boards of appeal'). The members of that administrative council, most of whom are senior ministry officials from EU member countries, also have a lot of influence on their national patent systems."The Administrative Council does not "hold all the power". Those who want to substantially change the EPO need to set up a Diplomatic Conference of all EPC Member States. "However, the repercussions would go way beyond the direct targets.Clues on how the anti-patent campaign is set to proceed this autumn? Well, the idea of politically utilising the EU Community Patent project  is not new. And, they should not forget that any EU Regulation on a Community Patent would not require a Common Position with the European Parliament because of such matter would not be covered by any co-decision requirements.See also Out-Law and Heise Newsticker (in German only, sorry).
"Patents on CIIs are, in general, already perfectly legal under the European Patent Convention ("EPC") as well as under the various national patent laws of the EU Member States." If it is so legal, maybe you can explain the difference between an artistic creation, which is excluded by article 52.2 of the Munich convention, and an artistic creation as such?
" And, they should not forget that any EU Regulation on a Community Patent would not require a Common Position with the European Parliament because of such matter would not be covered by any co-decision requirements." You are talking about the "patent establishement controlling the Council Working Group in Intellectual Property (Patents)", right?
Please, don't be so lazy. You really should take the time the spell anti- SOFTWARE patents. Otherwise, your rambling does not make any sense.
No where in law does it state that CIIs are legitimate and enforcable patents. No where in law does it state that software exhibiting techinical features is patentable at all As a lawyer, you have simply made up these laws yourself in order to exploit a tiny ambiguity in EU law in favour of your corporate clients. Its complete utter nonsense to think that any software patent out there is enforcable at all - in fact it is not and no matter how many patents are illegally granted it does not make your interpretation of "as such" any more plausible. If you think you can convince a judge that "computer programs are not patentable as such" means software patents are legitimate under some vague and undefined conditions then I must question your competence and sanity. (Parliaments make laws not lawyers (or patent administrators)! Judges interpret laws not lawyers!) The fact that the law does not state under what conditions (if any) software may or may not be patently at all means that it is impossible to enforce software patents as there exists no criteria for defining or interpreting otherwise. You cannot make a law up out of thin air and say it means blah. My conclusion is you are merely pimping for more business by suggesting CIIs are legitimate and enforcable which amounts to fraud. Its no different from selling an insurance policy that says it will insure you for something but in fact doesn't because its not legally enforcable. You should know better and if there is any justice in the EU then you will be debarred.
No where in law does it state that CIIs are legitimate and enforcable patents. No where in law does it state that software exhibiting techinical features is patentable at all As a lawyer, you have simply made up these laws yourself in order to exploit a tiny ambiguity in EU law in favour of your corporate clients. Its complete utter nonsense to think that any software patent out there is enforcable at all - in fact it is not and no matter how many patents are illegally granted it does not make your interpretation of "as such" any more plausible. If you think you can convince a judge that "computer programs are not patentable as such" means software patents are legitimate under some vague and undefined conditions then I must question your competence and sanity. (Parliaments make laws not lawyers (or patent administrators)! Judges interpret laws not lawyers!) The fact that the law does not state under what conditions (if any) software may or may not be patently at all means that it is impossible to enforce software patents as there exists no criteria for defining or interpreting otherwise. You cannot make a law up out of thin air and say it means blah. My conclusion is you are merely pimping for more business by suggesting CIIs are legitimate and enforcable which amounts to fraud. Its no different from selling an insurance policy that says it will insure you for something but in fact doesn't because its not legally enforcable. You should know better and if there is any justice in the EU then you will be debarred. Post a Comment
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