"One of the purposes of the Patents Act 2004 was to bring UK patent law into line with the revised European Patent Convention, which was agreed by Diplomatic Conference in 2000. With the necessary legislation in place (although not yet in force), and with various formalities having been completed, the UK has now ratified the revised EPC.
It is the fourteenth EPC contracting state to do so. The revised EPC will take effect two years after the fifteenth state has ratified or acceded, or (if earlier) three months after the final state has ratified or acceded. It is therefore not likely to take effect before late 2007. The relevant provisions of the 2004 Act will be brought into force on the same day that the revised EPC takes effect. [...]"
For some explanations on the EPC 2000, consult the EPO website here.
"Bruce Lehman, former United States Commissioner for Patents & Trademarks, writes in today?s Wall Street Journal about last month?s decision by the European Parliament to pass on a directive that would have established a Europe-wide standard for patenting computer related inventions.
[...]
One of the most interesting aspects of the article is Mr. Lehman?s subtle outline of several possible side effects of the decision that might come to life in the United States.
First, the decision might negatively affect international harmonization efforts. Mr. Lehman is quite direct on this point, noting his regret that the ?'decision of the European Parliament will make it harder to harmonize global patent laws'.
Second, it's clear that at least Mr. Lehman believes that the decision will likely boost the anti-software patent crusade in the US.
Lastly, Mr. Lehman plainly states that the disproportionate flow of global investment in software development into the United States will continue because of the European decision. This conclusion is based on a simple premise ? investors tend to apply capital in places where protection is clear and tend to avoid applying capital where protection is cloudy. After the decision, protection for computer-implemented inventions in Europe is cloudy but remains clear in the US.
The CII Directive is officially dead in Europe... but it may very well have lingering effects in the United States."
Well, maybe that the decision will likely boost the anti-software patent crusade in the US but I think that over there we see a very broad pro-patent mainstream which will hardly be surmountable by those anti-patent campaigners.
There is an interesting Opinion of the Advocate General:
OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 9 June 2005
Case C-120/04
Medion AG
v
Thomson multimedia Sales Germany & Austria GmbH
1. In the present case, the Oberlandesgericht (Higher Regional Court), Düsseldorf, has referred to the Court a question on the interpretation of Article 5(1)(b) of the Trade Marks Directive.
2. That provision entitles a trade mark proprietor to prevent others from using in the course of trade ?any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public?.
3. The referring court asks essentially whether there is a likelihood of confusion on the part of the public within the meaning of Article 5(1)(b) where a composite word or word/figurative sign (in the present case, THOMSON LIFE) comprises a company name followed by an earlier mark (namely, LIFE) which consists of a single word with ?normal distinctiveness? and which, although it does not shape or mould the overall impression conveyed by the composite sign, has an independent distinctive role therein. The referring court's question was prompted in particular by the ?Prägetheorie?, a doctrine of German trade mark law developed by the Bundesgerichtshof (Federal Court of Justice), considered below.
[...]
Conclusion
41. I am accordingly of the view that the question referred by the Oberlandesgericht, Düsseldorf, should be answered as follows:
In determining whether a composite word or word/figurative sign comprising a company name followed by an earlier mark which consists of a single word with ?normal distinctiveness? and which, although it does not shape or mould the overall impression conveyed by the composite sign, has an independent distinctive role therein is sufficiently similar to the earlier mark to give rise to a likelihood of confusion on the part of the public within the meaning of Article 5(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, a national court must base its assessment on the overall impression given by each mark, bearing in mind, in particular, their distinctive and dominant components, the nature of the public concerned, the category of goods or services in question and the circumstances in which they are marketed.
Looks as if German Courts would likely have to re-calibrate their gauge concerning collision of multi-part trade marks. (Link thanks to Mr. Peter Müller)
Mr. Florian Müller has suggested that the Open Source Community should steer clear of anti-IP positioning:
"[...]AMMAN - In a statement to ag-IP-news on Saturday, Florian Mueller - a leading figure in the European anti-software patent movement- conceded: "I am generally pro-IP because I've been living off IPRs (Intellectual Property Rights) for years and (am) just against software patents." [...]"
Well, I am not quite sure how to assess the scope of this statement ...
Patentability of CIIs in the UK: Analysis of the Effect of the CFPH and Halliburton Judgments.
In my earlier posting I had reported on two important pieces of UK Case Law concerning the patentability of CIIs. The UK Patent Office now has published some comments on the future influence of both decisions on the general practise of the Office:
"[...] 3. With the possible exception of one borderline case, in the Patent Office's view the CFPH approach leads to exactly the same conclusion as the old 'technical contribution' test. However, in conducting this exercise it has become clear that, to apply the CFPH test, it is very important to assess correctly the advance in the art, because otherwise the wrong conclusion can easily be reached.
4. The borderline case relates to compilers. Fewer of these may prove to be patentable under the CFPH approach. [...]"
However,
"[...] 5. As the Practice Notice explains, the test used by the Deputy Judge in CFPH to assess whether an invention was patentable was a two stage one comprising:
(1) Identify what is the advance in the art that is said to be new and not obvious (and susceptible of industrial application).
(2) Determine whether it is both new and not obvious (and susceptible of industrial application) under the description of an "invention" in the sense of Article 52 of the European Patent Convention - which section 1 of the Patents Act 1977 (PDF 356Kb) reflects.
6. Because the Deputy Judge in CFPH was able to assume that the claimed invention was both novel and inventive per se, it was appropriate for the purposes of that case to express the test as simply a two-step one. However, where that assumption is inappropriate, the test will usually break down into rather more steps:
Identify the alleged advance Decide whether that advance is:
new
not obvious
susceptible of industrial application
If yes to all those, decide whether the advance falls under the Article 52 description of an invention - ie is in a non-excluded field.
7. In considering the first step it is important to look at the invention as a whole and not take too narrow a view - in this respect, the CFPH approach is no different from the previous approach. In particular, whilst novel software may well be a crucial element of the advance, that does not necessarily mean that the advance resides in the software alone. This is where the EPO form of claim can help, as the "characterising" part of the claim ought to equate to the alleged advance.
8. The use of case studies creates a particular problem when assessing the alleged advance. The background against which the case study has to be viewed is invariably incomplete, and different assumptions about that background can therefore lead to rather different assessments of the advance. Indeed, this was an issue that accounted for some of the debate in the workshops themselves. Accordingly we have tried to give a clearer indication of the assumptions we have made when assessing each case study. However, none of the case studies should be taken as a decisive indication of how a real case might fare, because even if the facts might look superficially similar, the background against which the case has to be viewed might be different.
9. Although for simplicity these notes mainly refer to CFPH, where appropriate they also take account of the judgment in Halliburton Energy Services Inc v Smith International (North Sea) Ltd and others [2005] EWHC 1623 Pat.
10. At the time of writing there has only been one decision since the judgment in CFPH was handed down (see case study 11). Future decisions of hearing officers or judgments of the courts may, of course, alter the position if they develop or refine the CFPH approach. [...]"
Hence, there is emerging another difference between the pan-European EPO and the national UK practises:
"[...]On the basis of our understanding of previous case law, examiners have been using the "technical contribution" test to assess whether inventions fall outside the exclusions set out in section 1(2) of the Patents Act 1977. Recognising the importance of the case law of the European Patent Office (EPO), examiners have often also applied the test now used by the EPO, as set out in the EPO Board of Appeal decision in Hitachi T258/03. However, they have done this largely as a cross-check, taking the view that the "technical contribution" test was the proper one under UK law.
4. The CFPH judgment, having taken account of the underlying principles, the emphasis many previous Court of Appeal judgments have placed on having regard to decisions of the Boards of Appeal of the EPO and the comments of the House of Lords in Biogen Inc v Medeva plc [1997] RPC 1 at page 42, concludes that assessing inventions against section 1(2) in isolation by applying the "technical contribution" test is not the right approach. [...]"
The failed EU Directivce originally was designed to eliminate such divergences.
"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.
Now that the parliament resumes its work, different ideas will be discussed as to what should happen next.
Let's quickly recall: In March, the Council of the European Union adopted a common position on a "directive on the patentability of computer-implemented inventions".
Its purpose was to ratify the granting practice of the European Patent Office. Critics of the proposal said that it would, like the original proposal by the European Commission in 2002, effectively legalize software and e-commerce patents in Europe."
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.
In September of 2003, the European Parliament had made numerous 'abolitionist' amendments, which were not reflected in the common position."
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.
In my opinion, the outright rejection of the Council's common position was the best procedural decision at the time.
As President Borrell said in a press conference, it was "a milestone in the history of a parliament that lives up to its task and exercises its rights".
He also left no doubt that the parliament thereby had hit back at the Council and the Commission for ignoring its request for a fresh start.
Europe is fortunate, and many in the USA and Asia are jealous, because article 52 of the European Patent Convention expressly excludes software from patentability. That's why we have hardly any software patent litigation over here. The parliament preserved that major competitive advantage."
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.
In the first reading on the directive, the parliament proposed to put an end to that flagrant bending of the law, and wanted to rein in a system that is basically its own judge and beyond parliamentary control."
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.
A simple resolution with a strong effect For the parliament, it would be feasible with a minimum of logistical effort to express its majority will.
The parliament could pass a short and simple resolution that calls on the administrative council and the president of the European Patent Office to take the appropriate measures so that the existing law be complied with, in the spirit of those 21 amendments.
Those amendments have been published in all of the EU's languages and could be easily referenced.
There would be no need for much debating or lobbying, as of all that has already taken place to an extent that was probably too much for most people's taste.
Transparency and guidance The benefits would be many, and huge. First of all, the parliament could prove once again that it is a constructive force, and that others are to blame for the derailment of the directive.
The resolution could optionally call on the European Commission to submit a new proposal in accordance with its suggestions.
A roll-call vote would show citizens throughout the EU where their directly elected representatives stand on the issue."
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.
Worldwide impact of resolution Lawmakers in EU member countries could pass national legislation in the spirit of the European Parliament's suggestions, and the Brussels assembly itself would lend such initiatives a lot of advance credibility and legitimacy.
The US Congress is presently working on a patent reform bill that would primarily benefit large corporations. Those politicians and citizens in America who fight for balanced intellectual property rights deserve to be further encouraged.
In India, South America, South Africa and other countries and regions, the jury is still out on software patents. There is some awareness for the issues involved. If Europe doesn't send a signal to the rest of the world, then the US government might just have its way.
President Bush has chosen a Microsoft lobbyist to become the permanent representative of the United States to the European Union, which says something about its perspective on foreign trade.
As a big believer in the idea of a united Europe, I find the notion of a community patent very appealing per se. However, I can also understand the concerns that various countries have, and without unanimity in the Council, it won't fly.
Some have said that Europe should firstly harmonize its patent law in general, and then look at specific sectors such as software patents. The same people who said that were also in favour of approving the Council's common position in parliament, so there's a contradiction.
A community patent directive could only achieve its stated goal of making Europe more competitive if it's part of, or a subsequent measure to, a fundamental paradigm shift in patent policy.
The EPO is now at an annual rate of 180,000 new patent applications, about half of which result in the issuance of a patent.
Every patent is a 20-year monopoly, and most of those monopolies aren't justified because the respective "inventions" don't represent major breakthroughs.
A harmonization of European patent law would have to lead to smarter patent policy in general, and economic research that indicates negative effects of today's patent systems on innovation would have to be heeded.
But a parliamentary resolution on software patents would be of value for the reasons I outlined, independently from whatever may or may not happen with the community patent. [...]"
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.
EPO Board Of Appeal on the Meaning of a Functional Feature in a Product Claim.
From a recently published decision T 0132/02 of the Technical Board of Appeal 3.5.1 of the European Patent Office concerning European Patent application No. 95304215.7:
"A functional feature in a product claim should be construed as an implicit definition of those structural features which are necessary to achieve a particular effect when the product is used or applied in accordance with the teaching inherent in the claim; the effect to be achieved and the use should be disclosed in the application. The capability of attaining such a particular effect may thus be considered as an implicit feature of the product itself, even if the realization of the particular effect requires a particular use or interaction with another product, system or apparatus, provided that such use or interaction are disclosed in the application."
These findings are of particular importance when it comes to a proper understanding of certain classes of claims concerning computer-implemented inventions in general.
"Lloyd's of London is close to offering independent insurance protection worldwide against potential IP litigation involving Linux and open source software. The financial services giant has agreed to take on the risk associated with open source, and is finalizing arrangements to work through Open Source Risk Management (OSRM) who will become Lloyd's sole US representative. [...]"
SAN FRANCISCO, LINUXWORLD - August 9, 2005 - The Open Source Development Labs (OSDL), a global consortium dedicated to accelerating the adoption of Linux®, today announced a new initiative called the OSDL patent commons project designed to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry.
''The OSDL patent commons project is designed to increase the utility and value of the growing number of patent pledges and promises in the past year by providing a central repository where intellectual property can be held for the benefit of all of us," said Stuart Cohen, CEO of OSDL. "Our goal is to make it easier for developers and industry to take advantage of the good works of vendors, individuals and organizations who may wish to pledge patents and intellectual property in support of the community. [...]
"[...] The directive on "computer-implemented inventions" is dead but software patents in Europe are not. We have not defeated the pro-patent forces, only driven them off. They decided to avoid a showdown at that time and place, but that does not mean they have given up. We do not know when or how they will be back, but we must not assume they will use the same methods or that we have years to prepare.
This battle has implications far beyond the software field. Our years-long fight has shown how undemocratic the EU is. It is a system in which bureaucrats can make decisions that, practically speaking, the public can never reverse.
[...]
Europe may or may not use the opportunity of the present impasse to adopt a more democratic constitution, but software users in Europe must not fail to make use of the breathing space they have gained. This is not the time to relax and celebrate. It is the time to strengthen the anti-software-patent movement in Europe to meet the next assault."
"[...] We have won a defensive battle, but the European Patent Office continues to insist on the unlawful patenting practise to which the European Parliament has said a clear No. There will without doubt be further attempts by the European patent establishment to impose this practise on national courts via EU law, or even simply by institution of a EU patent court or a Community Patent. It must be clear that such institutions must not be created before the problems of the EPO are solved. During the next years and months we will continue to need support from all political players in building up pressure to solve these problems. We now have nearly 2000 companies signed up as Economic Majority supporters, but we must reach a hundred times this amount, and we must knit these supporters into a close network with much greater organisational capability than before.
Small and medium enterprises are the powerhouse of innovation and employment in Europe's information economy. The continued patent threat will hopefully have one positive effect: It will make the Economic Majority aware of its political responsibilities. It is this majority of players that must find answers to a large range of problems connected to the EU's goals of "becoming the most competitive knowledge economy". [...]"
Time will show what really is set to happen after the summer break.
Report on the 102nd Meeting of the Administrative Council of the European Patent Organisation.
Some interesting snippets from the Report on the 102nd meeting of the Administrative Council of the European Patent Organisation (07 to 10 June 2005):
"[...] On legal affairs, the Council heard an oral report about the 7th meeting of the Working Party on Litigation (held in Munich on the margin of its own meeting) and noted with interest that the European Commission had begun to consider the possibility of reviewing its position on a European Patent Court. [...]"
"[...] On the EPO’s internal management, the Council noted with great interest the staff representatives’ suggestion that there should be a code of conduct for the EPO. [..]"
"[...] On financial and budgetary matters, the Council held an initial exchange of views about the results of an external consultant’s study of the EPO’s financial situation, and agreed that in autumn 2005 it would conduct more detailed discussions which would make it possible to take appropriate decisions and in particular to curb the recent worrying decline in productivity. The 2006 budget and 2007-2010 financial plan should be drafted in the light of that necessity and of the Council’s recommendation that in future the Office should focus more on its core activities. [...]"
The news on a possible change of the EU Commission's position concerning the litigation regime sounds promising. But, er, to what end do they need a code of conduct for EPO employees, now, some thirty years after starting EPO operations? And, what's meant with "the recent worrying decline in productivity"? Output of granted patents per week? Or patent searches per month?
"[...] Though insufficient turnout led to a cancellation of the lunch event, the press briefing, aimed at highlighting increased civil society participation as a key element of the WIPO development agenda, was attended by about a dozen Geneva journalists. There, a journalist asked about the lack of press participation in WIPO meetings. Journalists have recently raised concerns about accredited non-governmental organisations blogging from within WIPO meetings while press cannot attend. [...]"
UK: Interesting Case Law on Patentability of Computer-Implemented Inventions.
A remarkable Judgement concerning the patentability of computer-implemented inventions has been published in the UK. In particular, Mr. Peter Prescott QC, a former patent Examiner, now sitting as a Deputy Judge of the Royal Courts of Justice in London, had to deal with two UK patent applications GB0226984.3 and GB0419317.3 claiming inventions on the borderline between patentable and non-patentable subject matter. Mr. Prescott dismissed both appeals and, hence, both of the applications have been rejected.
[...] At the risk of some inaccuracy, patents are supposed to be granted for non-obvious advances in technology. I said "at the risk of some inaccuracy". We sense that we know 'technology' when we see it. And no doubt that is correct, most of the time.
But it is not correct all of the time. Therein lies the delusion. You can prove that for yourself by trying to find a definition of 'technology' that everybody can agree on. The more you try, the more you will discover what a horribly imprecise concept it is. (Would it cover an astro-navigation chart? Naval tactics? Double-entry bookkeeping? The phonetic alphabet?) Many have tried to frame an acceptable definition, but to the best of my knowledge none have succeeded. It is like the equally vexing question, "What is Art?". The hard truth is this: concepts of that sort have no existence, and words of that sort have no meaning, except by human convention; but human beings are hopelessly in disagreement at the margin. And it is, precisely, at the margin of uncertainty that cases come up for decision.
The same goes for the cognate word 'technical'. A number of surveys in the context of patenting have shown that, not only is there no agreement about the meaning of the word, but that most informed respondents agree that "trying to define the words 'technical' or 'technology' is a dead-end" 5. That 'technical' is vague has implicitly been recognised in our courts too. For example, in Gale’s Application [1991] RPC 305, 328 Nicholls LJ said that Mr Gale’s algorithm did not solve a 'technical' problem lying within the computer. He continued:
I confess to having difficulty in identifying clearly the boundary line between what is and what is not a technical problem for this purpose. That, at least to some extent, may well be no more than a reflection of my lack of expertise in this field.
But for my part I think Nicholls LJ was too modest. I believe his difficulty arose, not through lack of expertise, but because of the inherent vagueness of the concept itself. In Fujitsu Limited’s Application [1997] EWCA Civ 1174, [1997] RPC 608 Aldous LJ said:
I, like Nicholls LJ, have difficulty in identifying clearly the boundary line between what is and what is not a technical contribution.
Likewise the German Federal Court of Justice in XZB 15/98, "Sprachanalyseeinrichtung", 11 May 2000.
I mention this near the outset of this judgment because it is important. If you look at the case law on the subject, both here and in Munich, you will find many references to "technical contribution", "technical result", and so on, being touchstones by which these cases are decided. The use of the word 'technical' as a short-hand expression in order to identify patentable subject-matter is often convenient. But it should be remembered that it was not used by the framers of the Patents Act 1977 or the European Patent Convention when they wanted to tell us what is or is not an 'invention'. In any case the word 'technical' is not a solution. It is merely a restatement of the problem in different and more imprecise language. I am not claiming that it is wrong to decide cases with reference to the word 'technical'. It happens all the time. What I am saying is that it is not a panacea. It is a useful servant but a dangerous master.
[...]
Recently, the scope of this exclusion has been under re-consideration by the European Union. The Commission wanted to harmonise the law by defining the line between inventions that are properly patentable and mere computer programs. Although not strictly relevant to what I have to decide, I must admit I watched developments with some anxiety. Had the proposal succeeded it would have entrenched a test involving 'technical contribution' and 'technical features' that I suspect is too vague to be workable at the margin. On 6 July 2005 the proposed directive was defeated in the European Parliament and it will not be re-introduced.
[...]
It is fairly obvious that our Patent Office is not very enthusiastic about the prospect of having to track every twist and turn of the EPO’s reasoning – some of it rather refined – and I can understand why. It would not be possible anyway because the EPO seldom establishes a new practice in the twinkling of an eye. Furthermore there are aspects of the EPO’s current approach which, in my opinion, are not entirely satisfactory. In order to sort this out, let me consider to what extent the EPO may be right.
[...]
SOME REMARKS
Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them. It is said that not a few of these pertain to business methods as well. From the point of view of the applicants in our case, if there is any chance of getting such a patent it may be said to be a rational business choice to try it. If not, their competitors might. I have pointed out that patents that are wrongly granted can be very expensive to challenge, and perhaps beyond the means or inclination of small and medium enterprises. An accumulation of patents of that sort (sometimes known as a "patent thicket") may be a serious barrier to entry.
The only safeguard against that wrong – and it is a wrong – is the vigilance of the Patent Office. When I was a Patent Office examiner (though that was many years ago) we knew that we sometimes granted patents that we shouldn’t, but did it anyway because we thought the Patents Appeal Tribunal would not support us. I believe that when a Patent Office examiner upholds the law he or she ought to be named and praised. And even if the Patents Court may disagree with the objection on appeal, it is a matter of praise all the same if the objection was reasonable.
These are strong words, indeed. They convey an eloquent dismissal
of some of the aspects of the current doctrine on the patentability of computer-implemented inventions as observed by the Boards of Appeal of the EPO;
of the conceptual foundations of the EU Draft Directive on the patentability of computer-implemented inventions (which has failed only recently) wherein the EU intended to mark the borderline between patentable inventions and other kinds of non-patentable subject matter by utilising the concept of a "technical contribution"; and as well
of the various attempts of the critics of the patent system to strangle patenting of computer-implemented inventions by promoting a "technicality test" on the basis of a definition of "technicallity" which was framed as narrow as possible.
Moreover, it becomes clear how, without the unifying force of a EU Directive, the various systems of case law throughout the EU acutally are diverging.
Nevertheless, I still appreciate the cancellation of the Draft Directive which is preferrable over any Directive conveying an unsuitable overly narrow concept of a technicality test.
Time will show as to whether or not Mr. Prescott QC has re-opened the debate on the very basics of discriminating patentable from non-patentable subject-matter on a broader scale.
Feel free to contact PA Axel H Horns via e-mail
horns@ipjur.com. BEWARE: DO NOT SEND CONFIDENTIAL INFORMATION UNENCRYPTED VIA E-MAIL. USE OF ENCRYPTION SOFTWARE IS HIGHLY RECOMMENDED. PA AXEL H HORNS IS PROVIDING SUPPORT FOR ENCRYPTED E-MAIL MESSAGES USING PGP OR PGP COMPATIBLE FORMATS. THE PGP PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE
HERE. THE GnuPG PUBLIC KEY FOR PA AXEL H HORNS IS AVAILABLE
HERE.
Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
From the website of the UK-PTO:
my earlier posting I had reported on two important pieces of UK Case Law concerning the patentability of CIIs. The UK Patent Office now has published some 
