In the Guidelines for Examination in the European Patent Office [1978] the EPO interprets the term “programs for computers” of Art 52(2):

A computer program may take various forms, e.g. an algorithm, a flow-chart or a series of coded instructions which can be recorded on a tape or other machine-readable record-medium, and can be regarded as a particular case of either a mathematical method (see above) or a presentation or information (see below).

If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims.

For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.

In the Stalin era, no post office in the then Soviet Union would accept a telegram to Stalin unless it began:

Radiant light of the people, eminent flower of communism, …

This “person cult” was good for the economies of the post office but bad for people who just had to rely on the eminent wisdom of comrade Stalin to make the right decisions. The great “purges” from 1936 to 38 do not attest to this putative wisdom, and any clever human society does well in distributing power and the making of important decisions between several persons. In legal systems, this is done by the process of judicial review which is pretty similar in all countries, plus the system of making judges independent so that they cannot be punished for their decisions.

The EPO mailing list, in a way, is the opposite of a “person cult” in that it allows overt criticism of the EPO in matters such as patenting software. However, the practice of the EPO is quite stalinistic in that it has pretty much inactivated the system of judicial review built into the EPC (European Patent Convention).

Apparently, this is being done by a tacit understanding of the members of the TBAs not to refer cases to the EBA (Enlarged Board of Appeal) any longer (No cases were referred in 2000).

In this way, the presidents of the TBAs (Technical Boards of Appeal) have promoted themselves into “radiant lights of the people of Europe”, into “flowers of European patent knowledge”, into ultimate sources of wisdom in matters like patenting software.

Nowadays, the buying of any diskette containing SW might constitute patent infringement, but this far-reaching consequence is only based upon decisions of one TBA which had no authority whatsoever to issue binding decisions on this basic matter without first referring the question to the EBA.

Such a referral was more than appropriate since what could be closer to “a computer program per se” than a diskette containing that selfsame program?

If that is not the “program per se”, what is?

Then, the term becomes without any meaning, and the above citations clearly show that it was understood to be meaningful for some time and to mean just that: A program stored on a memory device.

Whatever the EPO decides may have important consequences for hundreds of millions of people in Europe and Cyprus, and my subjective feeling is that the methods of Stalinism no longer have a place in modern Europe, and that the judges of the TBAs should voluntarily subject themselves to the rule of law and of judicial review.

If this is not done, sooner or later a national court will decide that it is not bound by this or that decision of the EPO as having no basis in the EPC, and this will run through the European Patent System like a shock wave and cause a great deal of harm to small firms who then no longer can assert their patents because of legal uncertainty.

It will cause no such harm to big firms who usually have thousands of patents so that loss of some has no meaning for them.

The European Patent System is a giant experiment of unifying law in a large and economic important part of the world.

This can only be done with extreme care and diplomacy, and not with brachial methods.

The members of the TBAs should always be aware of their function plus their duties.

For them, the emphasis is not on innovation but rather on conservatism, careful deliberations, gaining full acceptance of their decisions by long public discussions, and allowing all interested circles to be heard.

The present practice where final decisions on such important matters are taken behind closed doors is not acceptable to the people of Europe and will antagonize them.

It may very well be that in the long run, the EBA will come to the same result namely that program + diskette may constitute patent infringement in certain cases.

But the EBA may also arrive at the contrary conclusion saying that the result might be desirable but is impossible under the present wording of the EPC and thus a matter for the parliaments of the member states to change.

My feeling leans toward the latter possiblity - you cannot decide that those who wrote the EPC were morons and used a term which had no meaning at all.

1 Resources

• In a series of lectures given in Vienna in 2000, Stanford Professor Lawrence Lessig warned that ongoing extensions to patentability formed part of a rising tide of “Software Stalinism”. This is also mentioned in a petition letter we sent, among many others, to the European Commission at that time.
• The inventor of the Theory of Inventive Problem Solving TRIZ (Теория рещеня избирателских задач) spent 4 years in the Vorkuta Gulag for questioning Stalin’s patent policies.
• Stalin’s patents were recently refiled in Europe
• EPO Supreme Tribunal refuses to arbitrate on Software Patents