CONTENT SYNDICATION
*ATOM* FEED:

 

CONTENT SYNDICATION
RSS 0.91 FEED:

 

BLOGROLL OPML:

BLOGROLL OPML FILE

 

Search in IPJUR.COM

 

[Powered by Google]
  

BLOG@IP::JUR

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

 

INTERNAL LINKDisclaimer & About This Website

 

 

INTERNAL LINK Visit the archives

 

Thursday, April 13, 2006

 

Mr. Adam Gierek MEP on EPO Case Law.

FFII EXTERNAL LINKreports that EXTERNAL LINKMr. Adam Gierek MEP (PL) has asked the Commission to provide a statement on the relationship between the case law of the EXTERNAL LINKEuropean Patent Office (EPO) and the legal framework under consideration for the Community Patent:
"A patent system can play a fundamental role in establishing an appropriate legal status for innovations and ensuring that their originators are properly rewarded. I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law.

Fortunately, the courts in the Member States are making use of their right to rescind patents granted by the EPO for software and business methods. The difference in approach between the EPO and, for example, the Polish patent office is illustrated by the fact that the latter has for months been refusing to grant two patents to applicants granted patents by the EPO. To date, the Polish courts have upheld these decisions.

Recently, the High Court of England and Wales ruled that two patents granted by the EPO were invalid on UK territory and emphasised the need for computer programs to be excluded from the scope of patent law even in cases where the use of a program produces a physical effect.

Before the vote held in the European Parliament on 6 July 2005, the rapporteur, Michel Rocard, said that 'rejection [of the directive] is a message directed at the European Patent Office. The European Parliament has refused to ratify the recent judicial errors by extending the scope of patentability to certain software programs'.

However, the EPO has not heeded that message and has not changed its practices.

Given the above, does the Commission still stand by the position set out in point 2.3.2 of the proposal for a Council Regulation on the Community patent (COM(2000) 412 final - 2000/0177(CNS)), namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
So, Mr. Gierek worries about certain aspects of the practice of the European Patent Office (EPO) "which are undermining the social acceptability of the patent system with patents being granted for solutions that are not patentable under the current law". What is that phrase intended to mean? There appears to be some subtext saying that the EPO is granting patents contrary to the law. Just that well-known old and boring prayer wheel of the various anti-patent campaigners groups. Does Mr. Gierek really think that certain patents granted by the EPO on computer-implemented inventions "are not patentable under the current law" just because he and his supporters dislike them? With other words, is he assuming powers of a superior "Board of Ultimative Appeals" above the real Boards of Appeal of the European Patent Office?

With all due respect, Mr. Gierek, but I beg to differ. Patentable unter the EPC is exactly that what the Boards of Appeal of the EPO consider as being patentable. No less, nothing more. And the Members of the Boards of Appeal are independent in their decisions from the opinions of the EPO management, see EXTERNAL LINKArticle 23 EPC. This has nothing to do with the fact that the Boards of Appeal are, in organisatorical terms, part of the EPO.

BTW, in this context I would like to point out that EXTERNAL LINKplans to create the full organisational autonomy of the EPO's Boards of Appeal are not entirely dead: According to a statement on the website of the EPO, the organisational autonomy of the Boards of Appeal was extensively discussed in the Administrative Council in June and in December 2003. Even if some states are reluctant and doubt the necessity of changing the present status of the Boards of Appeal, the majority of reactions were positive. Also SACEPO warmly welcomed this initiative. In November 2003 the Administrative Council's Committee on Patent Law started to examine the details of the proposal - a discussion which continued in 2004. At its meeting in June 2004, the Administrative Council found that establishing the Boards of Appeal as the third organ of the European Patent Organisation on the basis of the present draft should be EXTERNAL LINKone of the items of the agenda of a future Diplomatic Conference revising the EPC.

Technorati Tags: EXTERNAL LINK

INTERNAL LINK[Permalink]

 

 

Like a patent description, the interesting part is the claims. In Mr Gierek's question, the interesting part is the last sentence. Will the proposed community patent be based on EPO case law interpretation of the EPC (which allows software patents), or on the strict interpretation of the EPC (which does not allow them)?

It is a valid question to ask, and I don't say this just because I'm an anti-software patent (not "anti-patent", please!) campaigner.

Anyhow, keep up the good work! It makes interesting reading.

I do have a question for you: can you explain to me, in a few words, what is actually good (in your opinion) about software patents? It would make interesting reading to see a pro-patent view on the benefits of software patents. And I mean, benefits to the industry, and innovation, not simply patent holders.
 
INTERNAL LINK# posted by Pieter Hintjens : 13 April, 2006 21:05
 

 

 

Well, if the EU should ever create a system wherein the European Court of Justice (ECJ) were the final instance not only for infringement cases but also for appeals against the rejection of a patent application, then the situation would be somewhat open, I assume.

However, if the Boards of Appeal of the EPO are simply (in the same personal composition) also responsible for final decisions on grant of Community Patents by the EPO on the basis of the same clauses of the EPC as thought of now I do not see why the Members of the Boards involved should suddenly change their minds.

Concerning "software patents" I would like to remind you that computer-based technical solutions are now virtually omnipresent in many branches of the industry. Take, for example, the "command & control" systems of a modern car: Most of the interesting things there is done by embedded microprocessors. Hence, many of the inventions obtained at the car markers factories or their suppliers are indeed computer-implemented inventions. The same holds for lift and escalator makers as well as for suppliers in the field of of plant engineering and construction.

Despite the fact that there more and more patents on CIIs are granted, the economic role of the patent system for those companies remains as it was in earlier times.

If you fight down patents on computer-implemented inventions politically then you strip off patent protection not only from software companies like iMatix but also from more traditional companies like BMW or OTIS. The latter don't like that because they feel they need patent protection against their would-be imitators in the far east, for example. That is why the mainstream of the industriy did not join FFII's campaign last year.

It were your own words to the effect that filtering out patents in CII is terribly inselective, i.e. you would effectively not only kill dubious patents e.g. potentially disturbing the Internet but also bread-and-butter patents used by the more traditional industry. This fuels my attempts to direct the discussion away from EPC Art. 52 discussions to post-grant issues.
 
INTERNAL LINK# posted by Axel H Horns : 14 April, 2006 15:24
 
INTERNAL LINKPost a Comment

INTERNAL LINK Visit the archives

 

INTERNAL LINK< ? law blogs # >

 

INTERNAL LINKTechnorati Profile

 

BLOGROLL