While the European Commission is preparing a Directive about the limits of patentability, the European Patent Office (EPO) has announced new examination guidelines which sanction its current practise of allowing direct claims to computer programs and oblige examiners to apply this practise, which had been introduced by EPO judges at a low level in 1998 in anticipation of a change of law which later was was not carried out.
The section from the Guidelines for Examination in the European Patent Office of 2001-10-05 that deals with what are Patentable Inventions and how the list of non-inventions in Article 52 of the European Patent Invention (EPC) is to be applied in examination. Especially in the sections concerning computer programs and business methods, it says exactly the opposite of what the guidelines of 1978 said: today computer-implemented rules of organisation and calculation are in principle to be considered as patentable inventions.
Adopted by the President of the European Patent Office in accordance with EPC 10.2a with effect from 1978-06-01. Excerpts concerning the question of technical invention, limits of patentability, computer programs, industrial application etc.
president of the European Patent Office (EPO) since the mid-nineties, former FDP (liberal party) secretary of state in the BMJ (ministery of justice), active promoter of patentability expansion and of international unification of the patent system.
Dr. h.c. Ingo Kober, president of the European Patent Office (EPO), explains how much the european patent system has already achieved, how important it has become for the knowledge economy and that, as far as software and business methods are concerned, the EPO enjoys the full support of the national governments. Yes, the governments did not fulfill the EPO's wish to remove the computer program and business method exclusions in Art 52 EPC at the Diplomatic Conference of November 2000. But that does not prevent the EPO from continuing, as its president explains, to grant patents on computer programs and computer-implemented business methods (sic!), nor does it imply any criticism of this EPO practise.
The president of the European Patent Office has, in preemption of political decisions to be taken by European governments, decreed a regulation that authorises patent claims to computer programs. The Eurolinux Alliance calls for the replacement of the board of the European Patent Office by the european governments and the establishment of democratic control over the european patent system.
Computer programs are both unpatentable and patentable in Europe. How did the European Patent Office's Technical Boards of Appeal gradually manage to patent the unpatentable? Where taboos and artificially induced complexity mine the road, satiric comparison is often the fastest way to a thourough understanding.
In this contribution to the European Patent Office (EPO) mailing list, a European patent attorney cites the EPO Examination Guidelines of 1978 as clear documentary evidence for the intention of the legislator to keep computer programs on any storage medium free from any claims to the effect that their distribution, sale or use could infringe on a patent. But the European Patent Office's Technical Board of Appeal (TBA) apparently considered itself to be a kind of modern Stalin, an ultimate sources of wisdom in matters of whatever complexity, standing high above the legislator and the peoples of Europe, and even above the EPO's own institutions for judicial review. In this way the TBA risks to antagonise the public, to create harmful legal insecurity especially for small patent-holders and to severely damage the delicate process of building confidence in international institutions. The TBA should see itself as a conservator rather than an innovator.
So far computer programs and other rules of organisation and calculation are not patentable inventions according to European law. This doesn't mean that a patentable manufacturing process may not be controlled by software. However the European Patent Office and some national courts have gradually blurred the formerly sharp boundary between material and immaterial innovation, thus risking to break the whole system and plunge it into a quagmire of arbitrariness, legal insecurity and dysfunctionality. This article offers an introduction and an overview of relevant research literature.
On 2000-10-19 the European Commission's Industrial Property Unit published a position paper which tries to describe a legal reasoning similar to that which the European Patent Office has during recent years been using to justify its practise of granting software patents against the letter and spirit of the written law, and called on companies and industry associations to comment on this reasoning. The consultation was evidently conceived as a mobilisation exercise for patent departments of major corporations and associations. The consultation paper itself stated the viewpoint of the European Patent Office and asked questions that could only be reasonably answered by patent lawyers. Moreover, it was accompanied by an "independent study", carried out under the order of the EC IndProp Unit by a well known patent movement think-tank, which basically stated the same viewpoint. Patent law experts of various associations and corporations responded, mostly by applauding the paper and explaining that patents are needed to stimulate innovation and to protect the interests of small and medium-size companies. However there were also quite a few associations, companies and more than 1000 individuals, mostly programmers, who expressed their opposition to the extension of patentability to the realm of software, business methods, intellectual methods and other immaterial products and processes. The EC IndProp Unit later failed to adequately publish the consultation results and moderate a discussion. Therefore we are doing this, and you can help us.