If you develop something completely on your own, you can be sure that you are not violating anyone's copyright. However you may run afoul of patents. Patents are broad exclusion rights (monopolies) granted by the state in return for a disclosure of knowhow. Patent rights tend to be incompatible with the constitutional freedom principle, on which democracy and market economy are built. There is little reason to assume that granting monopolies for all kinds of new ideas will be beneficial for society as a whole. Thus, if patents are to be acceptable at all, the conditions for granting and enforcing them must be carefully designed. European patent jurisprudence has delimited the patentable invention by means of the following two distinctions:
|Matter (blue) vs Mind (red): physical causality vs logical functionality: concrete vs abstract: easy imitation of difficult innovation vs difficult imitation of easy innovation|
core vs implementation: Any new teaching, no matter how abstract, is ultimately materialised by known methods. It is not enough if the whole is new and physical. The core must pass the tests.
Congress shall have the power . . . to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Constitution of the USA --- Article I, section 8
If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system --- developed for a world in which physical assets predominated --- for an economy in which value increasingly is embodied in ideas rather than tangible capital?
A network-based sales system, comprising
- at least one buyer computer for operation by a user desiring to buy a product;
- at least one merchant computer; and
- at least one payment computer;
- the buyer computer, the merchant computer, and the payment computer being interconnected by a computer network;
- the buyer computer being programmed to receive a user request for purchasing a product, and to cause a payment message to be sent to the payment computer that comprises a product identifier identifying the product;
- the payment computer being programmed to receive the payment message, to cause an access message to be created that comprises the product identifier and an access message authenticator based on a cyptographic key, and to cause the access message to be sent to the merchant computer;
- and the merchant computer being programmed to receive the access message, to verify the access message authenticator to ensure that the access message authenticator was created using said cyptographic key, and to cause the product to be sent to the user desiring to buy the product.
Many issues debated in relation to software patents have their origin in the inconsistency between the innate properties of software, i.e. abstractness, generality and logical nature, and the required properties for patent claims, i.e. concreteness, specificity and physical substance.
As far as the laws of mathematics refer to reality, they are not certain. As far as the laws of mathematics are certain, they do not refer to reality.
What can be controlled is never completely real. What is real can never be completely controlled
Ilya Prigogine, borrowing from Vladimir Nabukov
The object of pure physics is the unfolding of the laws of the intelligible world; the object of pure mathematics that of unfolding the laws of human intelligence.
J. J. SYLVESTER
Computer science is no more about computers than astronomy is about telescopes.
Human intellectual activity is not, according to the views of our time, among the controllable forces of nature. ... The Federal Court of Justice (BGH) refuses to subsume human thinking under the concept of "technology", because that would deprive the concept of "technology" of its "specific and distinctive meaning". By insisting on this point, the BGH is not introducing an arbitrary definition of "technology" for the sake of patent law but rather consistently adopting views which have been developped by the natural sciences and technologies themselves.
However in all cases the plan-conformant utilisation of controllable natural forces has been named as an essential precondition for asserting the technical character of an invention. As shown above, the inclusion of human mental forces as such into the realm of the natural forces, on whose utilisation in creating an innovation the technical character of that innovation is founded, would lead to the consequence that virtually all results of human mental activity, as far as they constitute an instruction for plan-conformant action and are causally overseeable, would have to be attributed a technical meaning. In doing so, we would however de facto give up the concept of the technical invention and extend the patent system to a vast field of achievements of the human mind whose essence and limits can neither be recognized nor overseen.
Any attempt to attain the protection of mental achievements by means of extending the limits of the technical invention -- and thereby in fact giving up this concept -- leads onto a forbidden path. We must therefore insist that a pure rule of organisation and calculation, whose sole relation to the realm of technology consists in its usability for the normal operation of a known computer, does not deserve patent protection. Whether it can be awarded protection under some other regime, e.g. copyright or competition law, is outside the scope of our discussion.
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
or a presentation or information
. 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 considering whether an invention is present, [the examiner] should disregard the form or kind of claim and concentrate on the content in order to identify the novel contribution which the alleged
claimed makes to the known art. If this contribution does not constitute an invention, there is not patentable subject matter. This point is illustrated by the examples ... of different ways of claiming a computer program.
Is software now finally patentable?
Without doubt not yet.
In reality, the national and conventional rules are clear: they stipulate without ambiguity a principle of non-patentability of software. The game which is being played today consists in twisting these rules one way or another, e.g. by imagining to consider, as we have seen, the totality of software and hardware as a virtual machine which is potentially patentable (tomorrow ...). From that point on one can speak about software in patent language. The patents which may be obtained this way, by this channel or by another, however still do not have any value beyond what we lend to them - but of course it is possible that they will finally acquire a value simply through an informal consensus to stop discussing the question. In fact, the efficiency of this twisting of rules of law is largely dependent on whether this consensus evolves to take for granted -- against the rules of written law -- that we will play this game or not. This question is no longer a legal question in the strict sense of the term.
A simple look at the results of patenting software in Europe
and the economic studies of their effects on innovation and competition
is enough to make most people realise that something is going utterly wrong here. Now some people will claim that all this is just a problem of improving prior art search capabilities of patent offices. Others point out that, even if the decade-old novelty examination problem could be solved tomorrow, this would not help much: meaningful non-obviousness standards
can hardly be formulated and would, even if they were found, be difficult to uphold against the normal tendencies of patent offices to "deliver good value for the money of our customers", as a high european patent official recently put it.
Yet, even if reliable standards of novelty and non-obviousness could be defined and consistently upheld in practice, that would not be enough. We will not get around the question what should be patentable and what not. The patent system needs a limitation of statutory subject matter. Should new schemes of social engineering be patentable? Musical ideas? Ways of doing business? Argumentation chains? Anything useful? Anything practical? Anything economically exploitable? Anything for which patent offices decide to hire examiners? Where exactly are the limits? Traditionally this question has been answered by the concept of "technical invention", i.e. the requirement that an invention should not teach us a new idea but rather a new way of putting an idea to work by using controllable forces of nature.
There are many reasons for this traditional line-drawing between between logical ideas and physical implementations.
We have on one side questions asked to the real world, or, more narrowly, the world of controllable natural forces. Any new solution that is an answer to such a question will be fairly difficult to find, and it will entail the use of material objects both for experimentation and for utilisation, so that there will be an overhead cost to which patent fees can be added without much of a hassle.
On the other side we have questions asked to human reason, where the answer is a new rule of organisation or calculation, verifiable solely by logical deduction.
The separation between these two worlds was usually fairly straightforward 50 years ago and didn't create spectacular problems. Yet difficult borderline cases have always existed, and sophisticated reasoning for separating the mental from the material was already published and discussed by patent law experts in the 19th century.
However, gradually the two worlds, also called "world of matter" and "world of mind" by German patent law philosophy, have come closer together, and the most common mediating element between them is the universal computer.
So on one side there are people who say: if physical processes are patentable, why should it make any difference whether they run on special hardware or on general-purpose hardware?
On the other there are people who say: if rules or organisation and calculation are not patentable, why should it make any difference whether I run them in my head, with pencil and paper or with the normal tool of today's civilisation, which is the universal computer?
And in fact the second argument is right, because the economic rationale behind not granting patents on thoughts applies also here: abstract ideas are, regardless of their applicability to technical problems, produced without experimentation cost, applicable to an infinite range of problems, and replicated at zero cost with no overhead to which patent license fees could be added. The division of the extra cost of patents by the marginal cost (and long-term ideal price) of information goods is a division by zero. Moreover the deal between the inventor and the public, characterised as "monopoly on commercial implementation in return for disclosure of idea", is led ad absurdum: since between the idea and the application there is no invention, any adequate disclosure of the idea in turing-complete syntax risks to become an act of patent infringement.
These problems were intensely debated in the 60s and 70s among patent law scholars, especially in Germany. It has been explained in patent law text books and worked out by leading German law courts. Even possible future aberrations and their consequences were predicted by some of those texts. The only reason that the aberrations nonetheless occurred lies in the well-known weakness (ignorance and greed) of man. Patent lawyers are on the average quite ignorant about these questions, because being knowledgable about them does not bring any extra revenues into the law office. The same applies to patent offices such as the EPO, who exercise control over patent jurisdiction and at the same time finance themselves by revenues from the patents they grant.
According to the European Patent Convention, computer programs are not patentable inventions. This does not exclude that a patentable technical process may run under program control. However this process must be more than a rule (program) for using conventional computing equipment: it could reside in computer periphery which applies brake forces to tyres, and it should teach some new knowledge about causal relations in the use of forces of nature. The realm of pure reason, i.e. calculation, abstraction and programmation, must, according to the will of the legislators, remain free from patent claims. In its landmark decisions Dispositionsprogramm
of 1976, the German Federal Court (BGH) discussed this subject extensively and confirmed the dichotomy between the "realm of reason" and the "realm of natural forces", saying that the patent system must stay confined to the latter and lawcourts do not have the right to extend it into the former, since this would be against the will of the legislator and could pose a serious danger to freedom and basic interests of society while not necessarily helping to promote the progress of mathematics or any other of the non-patentable realms of reasoning. The wisdom of the doctrine of "technical invention", as formulated in the Dispositionsprogramm decision and other decisions in Germany and other countries, has been corroborated by old and new studies in the economics of technological innovation. It still serves as an authoritative source for Patent Law commentaries such as the standard work of Dr. Georg Benkard, who explained this concept of technical character in his commentary of 1988 and even in later editions and in many treatises and court decisions about the limits of patentability until this day, be it as a model or as a sign of bad conscience.
At the same time, since the 1960s there has been an increasingly influential group of patent lawyers who were not willing to accept a limitation of the patent systems to the "world of matter", arguing that this would keep patents out of some of the most interesting spheres of future economic development. Under their influence, the erosion of patentability standards proceded at a quick pace. Control logic in the area of microelectronics was patented, and abstract claims to functionality gradually became acceptable, making it inconsistent to uphold the "discrimination against computer programs". The patent departments of Siemens and IBM made special contributions to the "evolution of caselaw", investing great efforts to bring about several landmark decisions by the EPO and the German Federal Court. Already by the early 90s, all items in the exclusion list of Art 52 EPC, including mathematical methods, computer programs, organisational methods and methods of presenting information, became de facto patentable, and the exclusion list was interpreted to apply only to meaningless "as such" entities. This means that on the one hand anything, even chemicals or pharmaceutics, could be put on the exclusion list without influencing the patentability of such items, and on the other hand there is no more any limit to the expansion of the patent system into the whole range of logical innovation, from software to music to social engineering or political schemes or business models. However these have to be claimed using the terminology of "information technology". Thus it can happen that a carelessly worded "pension benefit system" claim will fail before the EPO, because the applicant forgot to disclose enough "technical effects" at the application date. What is patentable becomes mainly a question of claim wording, as one leading expert attorney correctly remarked.
Until the mid 90s, the EPO was however still shying away from the utmost consequence of this adventure. Rules of organisation and calculation were patented only indirectly, more or less carefully dressed up as "technical" processes. Whoever distributed a program on the market could still not infringe on any patent claim. The public at large therefore did not notice what was happening. Meanwhile the patent community gradually became more bold. In 1998 the EPO's technical board of appeal (not competent in questions of law) defined that a "computer program with a technical effect" is not a "computer program as such" and started granting patent claims to informational entities ("computer program product", computer program, data structure). By an "editor's remark" under the document the EPO's president made it clear that this was the new policy of the Office.
Meanwhile, the caselaw of the EPO has indeed been pushing the boundaries of what is technical ever wider. According to its Examination Guidelines of 2002 "A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in processing data which represent physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link."
According to rulings on EP 0689133, even the "economical use of the resource area on the screen" is "technical".
And if that doesn't cover the program, then "processing which is based on considerations of how a computer works is technical". Thus in the Sohei case a patent the EPO Board of Appeal upheld a patent for using the same input form to update two databases, namely an inventory database and a billing database, because it implied (but didn't actually limit itself by specifying how to do it) the handling of files containing different types of information, which is technical.
However the patents granted on this basis are of an uncertain value. Independent lawcourts (such as the Swedish Highest Court as well as the 17th senate of the German Federal Patent Court) regularly find contradictions in the reasoning of EPO and BGH and reject claims to computer programs or logical ideas. Other European lawcourts can be expected to point out these contradictions any time, as there is not very much authoritative case law e.g. in infringement procedings. Thus the patent community is very keen to change the existing laws so as to adapt them to the new practice of the EPO. In fact, at the time of the introduction of this practice, they had already assured themselves of the European Commission's support for a planned change of law. This failed however, at least preliminarily, in November 2000, due to vocal opposition from software creators and lack of support from European governments. Nevertheless, the EPO seems unimpressed. In 2001-10, it published new examination guidelines adapted to the 1998 decision, as if nothing had happened. Moreover, in the upcoming months a directive proposal from the European Commission is expected, and so far few in Brussels or in the national governments have shown any willingness to criticise the policy of the EPO. However even if the EPO and its friends eventually succeed in pushing their agenda through, this will not clarify the rules, but only bring the law in line with EPO jurisprudence, i.e. institutionalise legal uncertainty: US-style unlimited patentability veiled in a mist of politically motivated patent newspeak, with the effect that unimpressed American and Japanese companies will continue to obtain most of those patents which the EPO in theory does not grant.
At the end of the nineties, the terminology around the "technical invention" was still in use at the EPO. However it only rarely served to exclude patentable subject matter. Most of the time it served to play political games. It allowed the EPO to pretend that it was doing what the law and the politicians wanted it to do. From this purpose, a complex Doublespeak developped around terms such as "technical problem", "technical contribution", "computer-implemented invention" etc. The analysis of this Doublespeak is a task of sociolinguistics which is beyond the scope of this overview.
- Why Amazon One Click Shopping is Patentable under the Proposed EU Directive
- According to the European Commission (CEC)'s Directive Proposal COM(2002)92 for "Patentability of Computer-Implemented Inventions" and the revised version approved by the European Parliament's Committee for Legal Affairs and the Internal Market (JURI), algorithms and business methods such as Amazon One Click Shopping are without doubt patentable subject matter. This is because
- Any "computer-implemented" innovation is in principle considered to be a patentable "invention".
- The additional requirement of "technical contribution in the inventive step" does not mean what most people think it means.
- The directive proposal explicitly aims to codify the practise of the European Patent Office (EPO). The EPO has already granted thousands of patents on algorithms and business methods similar to Amazon One Click Shopping.
- CEC and JURI have built in further loopholes so that, even if some provisions are amended by the European Parliament, unlimited patentability remains assured.
- Moses, the Ten Exclusions from Patentability and "stealing with a further ethical effect"
- 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.
- Thomas Winischhofers Seite über Patente
- After investigation of numerous EPO landmark decisions on software patentability, Winischhofer writes in this law PhD thesis that the decisions are highly questionable from a legal point of view, because they are not only in conflict with the written law but even contradictory within and between themselves. Winischhofer summarizes:
The EPO itself has so far failed to develop any systematic interpreting framework. Even the much-discussed "computer program product / IBM" decision bases its argumentation on individual cases. The EPO case law is thus a disparate collection of individual cases. Even the above-mentioned "computer program product" decision falls short of giving a definition of "technical character", although the EPO has stated that this is the decision on which it wants to base its future judiciary practice.
- Dr. Swen Kiesewetter - Köbinger 2000: Über die Patentprüfung von Programmen für Datenverarbeitungsanlagen
- Ein Patentprüfer zeigt die Ungereimtheiten der Prüfung von Software-Anmeldungen auf. In ihrem Bemühen, ein Gesetz umzuinterpretieren, welches unmissverständlich die Patentierung von Datenverarbeitungsprogrammen verbietet, hat die Rechtsprechung im Laufe der Jahre Funktionsansprüche zugelassen, die es dem Anmelder erlauben, ein Programm zu verkleiden. Aber diese Funktionsansprüche stellen eher Probleme als Lösungen dar, und die Lösung zu diesen Problemen besteht in einem (nicht patentierbaren) Datenverarbeitungsprogramm (als solchem). Probleme zu patentieren ist aber noch weniger zulässig und in seinen Auswirkungen noch bedenklicher als Programme zu patentieren.
- Interpretation of art 52 of the European Patent Convention in view of the question, to what extent software is patentable
- Dr. Karl Friedrich Lenz, professor for German and European Law at Aoyama Gakuin University in Tokyo, investigates using the various universally accepted methods of law interpretation which meaning has to be attributed to the text of art 52 EPC today and reaches the conclusion that the Technical Boards of Appeal of the European Patent Office have for some time now regularly granted patents on programs for computers as such and are showing a disturbing willingness to substitute their own value judgements for those given by the legislator.
- Bernhardt & Kraßer 1986: Lehrbuch des Patentrechts
- Prof. Kraßer von der TU München überarbeitete das Lehrbuch von Prof. Bernhardt, ebenfalls TU München, nach dem Inkrafttreten des EPÜ und des neuen PatG völlig neu, um der neuen Gesetzeslage und der Rechtsprechung bis Anfang 1986 Rechnung zu tragen. Die Erklärungen zum Begriff der Erfindung und der Technik lehnen sich eng an die BGH-Rechtsprechung an und zitieren häufig insbesondere Gert Kolles Schrifttum hierzu. Kraßer sagt u.a. folgendes: Der Begriff der Erfindung ist gewohnheitsrechtlich durch den Begriff der Technik definiert. Eine Erfindung ist eine technische Lehre, d.h. eine Anweisung zum unmittelbaren Einsatz von Naturkräften zur Erreichung eines kausal übersehbaren Erfolges. Nicht technisch sind z.B. Organisations- und Rechenregeln, welche als Problemlösungen abgeschlossen sind, bevor bei ihrer Ausführung (z.B. in einem Computerprogramm) das Feld der Technik betreten wird. Der Katalog der Patentierbarkeitsausschlüsse in Art 52 EPÜ bestätigt dieses Gewohnheitsrecht und macht es verbindlich. Dies bedeutet, dass vielen bedeutenden geistigen Leistungen der Patentschutz versagt werden muss. Es wird im Schrifttum vielfach gefordert, diese Begrenzung der Patentierbarkeit aufzugeben oder zu lockern, insbesondere um dem Bedürfnis der zunehmend bedeutenden EDV-Branche nach Investitionsschutz entgegenzukommen. Der BGH lehnt dies jedoch ab. Es verbietet sich, einen solchen erweiterten Patentschutz auf dem Wege der richterlichen Rechtsfortbildung anzustreben. Nicht jede wirtschaftlich bedeutende Leistung muss schützbar sein. Wenn eine Leistung in einem Bereich nicht schützbar ist, so könnte das auf ein besonders hohes Freihaltungsbedürfnis für diesen Bereich hindeuten. Die Eröffnung des Patentschutzes für DV-Programme wäre vielleicht erwägenswert, aber das würde eine wohlüberlegte Gesetzesänderung erfordern. Bei sorgfältiger Abwägung der Vor- und Nachteile spricht viel gegen eine solche Änderung. Im Bereich der Organisations- und Rechenregeln steht den Belohnungsinteressen der Neuerer nämlich ein stärkeres Freihaltungsbedürfnis der Öffentlichkeit entgegen, da untechnische Neuerungen typischerweise ohne eine neue technische Ausrüstung von jedermann angewendet und weiterentwickelt werden können. Zudem scheint die Softwarebranche grundsätzlich mit den Möglichkeiten des Urheberrechts zufrieden zu sein. Allerdings hat der BGH um 1985 für die Anwendung des Urheberrechts auf Software so hohe Hürden aufgestellt, dass für viele Computerprogramme kein angemessener Rechtsschutz erhältlich ist. Daraus ergibt sich einerseits der Ruf nach einer besseren Anpassung des Urheberrechts auf Software oder einem urheberrechtsbasierten Software-Sonderschutzrecht, wie es die WIPO 1977 vorschlug. Andererseits wächst aber auch die Versuchung, über Hintertüren in den neuen EPA-Prüfungsrichtlinien von 1985 doch noch Patentschutz für Software anzustreben.
- Kolle 1977: Technik, Datenverarbeitung und Patentrecht
- Gert Kolle, today in charge of the EPO's international affairs department, was in the 1970s the leading law scholar on questions of patentability of computer programs. He acted as a "scientific adviser and rapporteur of the German delegation" at various patent legislation conferences of the 1970s. He always strove to interpret the current jurisdiction in a scholarly and systematic manner, far from what he called "ideological petrification of the software patentability debate" even in those days, and in this article of 1977, published in the leading German IP law journal, he explains, why computer programs canot be considered to be "technical", and why any attempt to "naively or willingly" open up the patent system for computer programs would inevitably lead to unlimited patentablity and to dangerous monopolisations of the sphere of pure reason, which, although thinkable under the EPC, go far beyond what a responsible judge may be allowed to decide. Kolle says that conservatism on this matter is a virtue, and a judge should be proud to wear the label "stuck in 19th century thinking", that software patentability proponents of the 1970s were eager to post onto their critics.
- M. Vivant: Le Recours a la Propriété Industrielle
- The article on patents analyses the history of French and European patent jurisdiction. It explains, why the European parliaments decided in the 60-70s against patentability of computer programs and how French courts supported this decision by some very clear verdicts even against software innovations related to the control of industrial production processes. It also explains how the European Patent Office since 1986 gradually deviated from these clear rules in 5 steps of logic-twisting. It warns however that the patents gratend by the EPO are of incertain value and could be negated by any national judge.
- BGH 1976-06-22: Dispositionsprogramm
- A landmark decision of the German Federal Court (BGH): 'organisation and calculation programs for computing machines used for disposition tasks, during whose execution a computing machine of known structure is used in the prescribed way, are not patentable.' This is the first and most often quoted of a series of decisions of the BGH's 10th Civil Senate, which explain why computer-implementable rules of organisation and calculation (programs for computers) are not technical inventions, and elaborates a methodology for analysing whether a patent application pertains to a technical invention or to a computer program. The Dispositionsprogramm verdict is especially famous for general and almost prophetic terms in which it explains that patent law is a variant of copyright for a specialised context, namely that of solving problems by the use of controllable forces of nature. Any attempt to "loosen and thereby in fact abolish" the concept of technical invention would lead onto a forbidden path, the judges warn.
- BGH 1980-09-16: Rolling Rod Splitting (Walzstabteilung) Decision
- One of a series of landmark decisions of the German Federal Court (BGH) about the non-patentability of computer programs: "Calculating programs for electronic data processing hardware, during whose execution a machine of known structure is used in the preconceived way, are not patentable. This holds even in cases where the computer is used for directly influencing a manufacturing process using known control means."
- CEC Software Patent Consultation 2000 Submissions:
- The Federal Patent Court (FPC/BPatG) had rejected the claims to an anti blocking system, because they pertained to an organisational or computational rule that solved an abstract problem within a known model, without any necessity of recourse to experimenting with natural forces. The Federal Court of Justice (FCJ/BGH) now overruled this rejection and upheld the patent, saying that it was enough that the claims were directed to a braking process whose causality is not determined by logics but dependent on forces of nature. Simultaneously the FCJ legalised function claims. The commentator, a patent attorney, hails this as groundbreaking good news that will send a sigh of relief through the rounds of patent lawyers, who had been struck by sorrow and anguish after reading the earlier FPC verdict, which seemed like a "witch hunt against all things non-technical".
- BGH 1986-03-11: Beschluss Flugkostenminimierung
- A teaching of how to control an airplane engine so as to diminish use of fuel is not necessarily a technical teaching. In the present case, the examined teaching was not primarily about harnessing the forces of nature but about the use of economic and mathematical knowledge. Therefore the Federal Court of Justice declared this patent invalid.
- BGH copyright senate 1990-10-04: "Betriebssystem" (operating system) Decision
- Decision of the 1st Civil Senate of the German Federal Court concerning the copyright protection of computer programs and the borderline between copyright and patent law: An operating system does not contain technical inventions, because it serves only to control the computer and connected peripherals within the scope of functionality predetermined by the hardware layout. The program is not subject to patent law but to copyright only, and even the EPO's recent (1986) decisions to grant patents for computer inventions do not change this, because the relevant patent claims, at least according to the interpretation of the EPO's Technical Board of Appeal, are not directed to computer programs as such but only to technical processes. A computer program enjoys copyright protection in as far as it contains elements of individual creation which are not determined by technical requirements or algorithms but depend on the weaving-together (arrangement and implementation) of such elements through individual planning and imagination. This
- BPatG 2000: Patentansprüche auf "Computerprogrammprodukt" etc unzulässig
- Beschluss des 17. Senates des Bundespatentgerichtes in der Beschwerdesache betr die Patentanmeldung P 4323241.8-53 (IBM: Suche fehlerhafter Zeichenketten in einem Text) vom August 2000. Führt sehr genau aus, warum ein Computerprogramm nicht beansprucht werden kann, und dass ein "Computerprogramm als solches" nichts anderes als ein Computerprogramm in beliebiger Entwurfsstufe ist. Das BPatG führt auch aus, dass ein digitales Speichermedium nicht technisch ist, und dass der Terminus "Computerprogrammprodukt" dem Fachmann nicht geläufig ist und wohl nichts anderes als "Computerprogramm" bedeuten solle. Ferner erläutert das BPatG, dass aus TRIPs Art 27 keine Verpflichtung zur Patentierung von Computerprogrammen hervorgeht, da diese nicht-technische Gegenstände sind. Es werden explizit einige patentinflationistische Irrlehren des EPA und des BGH widerlegt.
- Reports about the Munich Diplomatic Conference of 1973
- In autumn 1973 patent experts of the european governments convened in Munich for 1 month in order to create a unified european patent examination system. This conference led to the conclusion of the European Patent Convention (EPC) and to the creation of the European Patent Office (EPO). Art 52 EPC excludes programs for computers, mental rules, mathematical methods etc from patentability. This principle was further elaborated by the EPO's examination guidelines of 1978 and the initial court practise. However starting in 1986 judges at the EPO and some national courts started to extend the scope of patentability and render the exclusions of Art 52 EPC meaningless. In order to justify this, they used a teleologic and historic method of law interpretation which makes frequent reference to what the legislators in 1973 allegedly meant or did not understand. Therefore we have dug out the relevant documents and taken a look at the (relatively short) account about the negotiations concerning Art 52 EPC. This text offers no support for the EPO's method of interpretation. Quite to the contrary.
- EPO 1978: Examination Guidelines
- 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.
- Art 52 EPC: Interpretation and Revision
- The limits of what is patentable which were laid down in the European Patent Convention of 1973 have been eroded over the years. Influential patent courts have interpreted Art 52 in a way that renders it obscure and meaningless. Not all courts have followed this interpretation, and numerous law scholars have shown why it is not permissible. The EPO had accepted the inconsistencies in anticipation of an expected change of law. However this expectation was frustrated in 2000 by the governments and in 2003 by the European Parliament. The Parliament voted for a clarification which gives Art 52 back its meaning. Meanwhile, proponents from all sides have proposed to modify Art 52(3) EPC in one or the other way, of course while claiming that this merely serves to "clarify the status quo" or to implement a directive which serves this purpose, and, since the European Commission and the Council have not signalled support for the Parliament's approach, there is still no common understanding of which "status quo" we are talking about.
- Regulation about the invention concept of the European patent system and its interpretation with special regard to programs for computers
- Only a few words are needed to explain to patent lawyers how 52 EPC can be interpreted in a meaningful and consistent manner. This Eurolinux proposal for a EU directive fits into one letter paper page. The advocates of patent inflation on the other hand write long EU consultation papers supposedly aiming to "harmonise" and "clarify", but in reality creating more inconsistencies and confusion with each line of text.
- Arno Körber: Patentschutz aus der Sicht eines Großunternehmens
- The longtime chairman of the Siemens patent department, Arno Körber, explains, how his department actively contributed to the "evolution of patent law" in order to adapt the "stubbornly conservative" practice of the German Patent Office to the "modern" rules of the global telecommunications and software business, which are set by the USA, namely the Court of Appeal for the Federal Circuit (CAFC). A mega corporation like Siemens can cope with any rules, be they good or bad, but it wants them to be uniform across the whole world.
- Mark Schar 1998: What is Technical?
- An EPO judge proposes a consistent definition of the term "technical character" that has sinc 1986 been changed by the EPO's Technical Board of Appeal in an unsystematic manner, case by case. Schar proposes that that any practical and repeatable solution should be considered to be a technical and therefore patentable. This is well in line with current EPO practise, and it means that all computer programs as well as all programmed or otherwise practically applied mathematical methods, business methods, games and data structures are patentable. Only the problem solving event in the human mind is non-patentable according to this doctrine. As soon as the solution is objectivated, i.e. transformed into its practically applicable and repeatable form, it is no longer the solution as such and therefore patentable. Schar explicitely rejects previous doctrines such as those of the German Federal Court (and the EPO examination guidelines of 1978) which distinguished between the invention and its embodiment (objectivation) and demanded that not only the emodiment but also the invention be technical, i.e. contain natural forces as a constitutive element. The chief reason he gives for this rejection is that certain books from 1900 contain some outdated or politically incorrect wording and that currently monism seems to be more fashionable than mind-matter dualism. This reasoning may be more than sufficient to convince the readers of the Journal of World Intellectual Property.
- EPO 2000/05/19: Examination of "business method" applications
- The EPO document which introduced the term "computer-implemented invention". This is Appendix 6 of a report in which the EPO explains to the US and Japanese Patent Office to what extent it has made progress in working around the European Patent Convention so as to make business methods patentable in Europe. This document became the basis of the European Commission's software patentability directive proposal of 2002/02/20.
- Mellulis (BGH) 1998: Zur Patentierbarkeit von Programmen fuer DV-Anlagen
- The software patent expert of the German Federal Court, Klaus Melullis, cites Microsoft as an example of a company that has acquired a dominant position by means of software and explains that since software has entered the center-stage of economic activity, it must be awarded patent protection. The list of patentability exclusions in Art 52 EPC is a non-exclusive list, meant to include only "non-technical" items. But software is, according to Melullis, technical. He solves this contradiction by assigning the term "computer program as such" an obscure meaning that makes it irrelevant in practice. This highly-debated article forms the basis for the new BGH caselaw of 1999/2000, which goes even beyond the EPO in postulating unlimited patentability.
- Keukenschrijver (BGH) 2000-03-29: Ausweg des BGH aus der Steinzeit
- Im Fr|hjahr 2000 gab der Bundesgerichtshof (BGH) in Deutschland mit der Entscheidung "Logikverifikation" ein Signal zur grenzenlosen Patentierbarkeit aller Organisations- und Rechenregeln, die |ber "programmtechnische Vorrichtungen" verwirklicht werden. Mit dieser Entscheidung folgte der BGH einem sehr laut gewordenen Ruf aus der Patentanbranche. Kurz nach Bekanntwerden der Entscheidung "Logikverifikation" berichtet BGH-Richter Keukenschrijver der M|nchener Patentanwaltskammer von dem neuen Durchbruch. Keukenschrijver kommt der Stimmung in seinem Publikum sehr entgegen, wenn er die fr|here ablehndende Haltung des BGH zu Softwarepatenten als "steinzeitlich" bezeichnet und die neuen Entscheidungen als einen Meilenstein auf dem Weg in ein besseres Zeitalter feiert. Insbesondere entspricht Keukenschrijver dem Geschmack des Publikums, wenn er erkldrt, der BGH habe die geltenden Gesetze nie angewendet uns sich stattdessen zundchst nach dem "altsteinzeitlichen" Technikbegriff der Dispositionsprogramm-Entscheidung gerichtet, der nunmehr einer neusteinzeitlichen Variante gewichen sei.
- Schölch 2001: Softwarepatente ohne Grenzen?
- In 2000 the 10th Senate of the German Federal Court of Justice (BGH/10) published the verdicts "Sprachanalyse" (Language Analysis) and "Logikverifikation" (logic verification) and with them a new doctrine that makes anything patentable that can be described as a "program-technical device". The BGH/10 overruled decisions of another court that had rejected the same patent applications due to lack of technicity (technical character). The 17th Senate of the Federal Patent Court (BPatG/17) had applied the "core theory", i.e. differentiated between new and old technology and demanded that the new and inventive part (i.e. the core of the invention) be in the "technical" realm, i.e. that it contribute a "teaching in the area of applied natural science", outside the scope of the list of exclusions on §1(2) PatG aka Art 52(2) EPC. The new verdict will on the contrary admit any claims even if only a non-inventive periphery is within the "technical sphere". Applied to organ building this would mean that not only a new way to build organ pipes would be considered a technical invention, but also a new piece of music played on the organ, as the author of this article observes. Günter Schölch, who is confronted with dubious software patents every day in his work at the German Patent Office, finds the BGH/10 decision unconvincing and warns that they will lead to a flood of harmful patents. Schölch also reviews the process of of patent inflation (gradual expansion of the scope of patentability) during the last decade and warns about dangerous social consequences.
- Günter Schölch 2000: Submission to CEC Consultation on Software Patent
- An examiner of the German Patent Office points out that the EU patent department's consultation paper uses a meaningless concept of technical character and sticks to a shoddy reasoning that dates back to the EPO caselaw of the Sohei decision (1986). It is this sophistry which has created the legal insecurity in Europe, and perpetuating this sophistry just perpetuates legal insecurity. If we want to tackle the legal insecurity, we need to break with this sophistry, delete the much-abused 'as such' clause (Art 52(3) EPC) and reestablish clear and consistent definitions of what is a technical invention. It is not enough that the claims contain technical features. Not the claim wording but the invention must be technical. The EPO's approach is to compare even non-technical problem solutions with with non-technical closest prior art and then deciding whether any technical feature is contained in the difference. This is illogical and circular. Such approaches, as proposed also in the consultation paper, are apparently using the "technical character" doctrine only as a cover-up for their real purpose, which is to make anything man-made under the sun patentable, like in the US. However this could have even graver consequences in Europe than in the US, given that the EPO and European courts tends to apply formalistic rules that favor the patentee and make claims have a broader effect than the same claims would have in the US. On the whole it can be said that the adventure of expanding patentability to all ideas constitutes a rupture of occidental civilisation and a course into a brave new world whose outline is just gradually appearing on the horizon in the US. This adventure is undertaken in spite of strong scientific evidence in its disfavor, supported only by the irrational belief of a well entrenched lobby in the universally beneficial effect of property rights.
- Patentfähige Datenverarbeitungsprogramme - ein Widerspruch in sich
- Dr. König, patent attorney from Düsseldorf, points out inconsistencies in the software patent caselaw of the EPO and BGH, criticises "circular conclusions" and argues that the EPO has "done violence to art 52 EPC". Through a "grammatical interpretation" of "programs for computers as such" he finds that this can refer only to all kinds of computer programs without exception, as far as they are claimed alone. The EPC of 1973, transcribed into German law in 1978, no longer allows a distinction between technical and untechnical programs. However it ist still possible to patent program-related combination inventions, which then have to be examined for technicity, novelty, non-obviousness and industrial applicability. Courts have often shown more imagination in "helping themselves over the obstacles of art 52". There is an elegant indirect way to effectively grant full patent protection for computer programs as such while avoiding the recent incoherences of the EPO and BGH jurisdiction. As parts of combination inventions, programs for computers may, just as is frequently the case with discoveries and scientific theories, enjoy full "usage protection", if their distribution can be construed as contributory infringement of a combination invention.
- BPatG 1999-06-14: "Automatische Absatzsteuerung"
- Zwei M|nchener Patentanwdlte und Aktivisten f|r die Patentierbarkeit von Programm- und Geschdftslogik erkldren Anfang 2000, dass Patente auf diesem Gebiet heute auf dem Weltmarkt wettbewerbsentscheidend sind und daher auch in Europa gesetzlich verankert werden m|ssen. Laut Esslinger & Betten wurde die bisherige Gesetzesregelung in ma_geblichen Kreisen seit langem als politische Fehlentscheidung betrachtet. Daher wurde "auf allen Kandlen" daran gearbeitet sie zundchst unschddlich zu machen. Heute kann endlich die kostenlose Bereitstellung von konkurrierenden Computerprogrammen unterbunden werden. Den Partikularinteressen der Opensource-Sozialromantiker stehen die volkswirtschaftlich relevanteren Interessen kleiner und mittlerer Softwareunternehmen gegen|ber, die sich nur durch Patente angemessen gegen die Gro_en sch|tzen kvnnen. Hdtte die Firma Netscape Patente auf Grundlagen des Bldtterns im WWW o.d. gehabt, so hdtte sie sich nicht dem Wettbewerbsdruck eines kostenlosen Konkurrenzproduktes beugen m|ssen.
- Betten & Resch 1999: News on Computer Law in Europe and Germany
- In a circular to their clients, leading software patent lawyers and patentability activists in Munich explain: the European Patent Office (EPO) has decided that media claims and Internet claims admissible. In the long run, the EPO will grant data structure claims. In view of the practice of the last two to five years it can be said that, in principle, a patent will be granted for all computer programs (including business methods) which are new and inventive.
- Nack 2000 zu BGH
- Der BGH erkldrte im Fr|hjahr 2000 in einer spektakuldren Kehrtwendung, der technische Charakter einer "programmtechnischen Vorrichtung" sei unabhdngig davon zu betrachten, ob diese Vorrichtung den Stand der Technik bereichert. Damit schien der Weg f|r die Patentierbarkeit aller Geschdftsmethoden ervffnet zu sein. Nack fragt, ob dies nun tatsdchlich der Fall ist. Er f|hrt in einige Fragestellungen ein, zeigt Ungereimtheiten der Rechtsprechung sowohl des BGH als auch des EPA auf ("Dogmatisch gesehen ist das Chaos jedoch kaum zu |berbieten"), weist auf die Mvglichkeit weiterer |berraschender Kehrtwendungen der Rechtsprechung hin, ldsst die gesetzlichen Patentierbarkeitsausschl|sse als nichtssagend erscheinen, und fordert zum Schluss, man solle das Thema nicht nur auf rechtsdogmatischer sondern auch auf politischer Ebene angehen. Wie 1877 gehe es heute darum, das Patentwesen auf neue Wirtschaftszweige (Handel, Banken, Dienstleistungen) auszudehnen. "Damals war man mutig und im Ergebnis |beraus erfolgreich; was spricht dagegen, heute wiederum mutig zu sein?"
- Keith Beresford 2000: Patenting Software Under the European Patent Convention
- This is a highly practical guide to registering software patents in Europe. The report explains how to formulate a software patent specification and how to formulate claims. It also provides examples of granted software patents, and European Patent Office and UK case law.
- CEC & BSA 2002-02-20: proposal to make all useful ideas patentable
- The European Commission (CEC) proposes to legalise the granting of patents on computer programs as such in Europe and ensure that there is no longer any legal foundation for refusing american-style software and business method patents in Europe. "But wait a minute, the CEC doesn't say that in its press release!" you may think. Quite right! To find out what they are really saying, you need to read the proposal itself. But be careful, it is written in an esoteric Newspeak from the European Patent Office (EPO), in which normal words often mean quite the opposite of what you would expect. Also you may get stuck in a long and confusing advocacy preface, which mixes EPO slang with belief statements about the importance of patents and proprietary software, implicitely suggesting some kind of connection between the two. This text disregards the opinions of virtually all respected software developpers and economists, citing as its only source of information about the software reality two unpublished studies from BSA & friends (alliance for copyright enforcement dominated by Microsoft and other large US companies) about the importance of proprietary software. These studies do not even deal with patents! The advocacy text and the proposal itself were apparently drafted on behalf of the CEC by an employee of BSA. Below we cite the complete proposal, adding proofs for BSA's role as well as an analysis of the content, based on a tabular comparison of the BSA and CEC versions with a debugged version based on the European Patent Convention (EPC) and related doctrines as found in the EPO examination guidelines of 1978 and the caselaw of the time. This EPC version help you to appreciate the clarity and wisdom of the patentability rules in the currently valid law, which the CEC's patent lawyer friends have worked hard to deform during the last few years.
- Political Economy of the Patent System: the Mechanisms of Patent Inflation
- During the last 200 years, the patent system has continually expanded. This expansion is not so much the result of conscious economic policy but rather to some automatic dynamics of political organisations, similar to monetary inflation or to the arms race. This article identifies several causes of patent inflation, traces their evolution and tries to look into the future.
- The TRIPs Treaty and Software Patents
- European patent authorities often cite the TRIPs treaty as a reason for making computer programs and business methods patentable and for making such patents enforcable in the most indecent ways. This reasoning is fallacious and easy to refute. It appears moreover that the European patent establishment itself is systematically violating the TRIPs treaty.
- What can we do when supreme courts decide against Law and Liberty?
- The German Patent Office is handing out patents on computer-implementable rules of organisation and calculation (programs for computers), although the written law, when understood either literally or by the only valid systematic interpretation, clearly disallows this. This illegal caselaw has been made possible by a series of decisions of the German Federal Court (BGH), which ovrerruled the Federal Patent Court (BPatG) in order to void the written law and replace it by new rules, which effectively remove all limits to patentability and all freedoms of programming. To reverse these court decisions, we need to ask clarification from the legislator and at the same time appeal to constitutional courts. Anonymous law experts give good advice.
- J.P. Smets: Software Useright: Solving Inconsistencies of Software Patents
- This article points out numerous legal and practical self-contradictions of software patenting.
- Stimulating competition and innovation in the information society
- NRC 2000: The Digital Dilemma
- According to this report by the US National Research Council, software patents were introduced by lawcourt decisions without support from the legislature, and it seems doubtful whether the patent expansion is promoting the progress of science and the useful arts, as Congress intended. The Court of Appeal of the Federal Circuit (CAFC) has taken the patent system into "unchartered waters", and the experience of the software industry suggests that this decision is urgently awaiting legislative review.
- LPF: Software Patents are Legally Questionnable
- Autodesk Testimony against Software Patents
- Jim Warren, board member of Autodesk, became known as a software and business pioneer and founding editor of Dobb's Journal. In a testimony at the US Patent Office hearings on behalf of Autodesk Inc in 1994, Warren explains first why computing rules are different from material phenomena and why the attempt to monopolise them breaks fundamental constitutional values.
- Tamai 1998: Abstraction orientated property of software and its relation to patentability
- Prof Tamai of Tokyo University shows how patenting of software clashes with some of the underlying assumptions of the patent system. The patent system relies on requirements such as concreteness and physical substance in order to keep the breadth of claims within reasonable limits. Software innovation however is the art of making processes as general as possible, i.e. the art of abstraction. Tamai quotes a set of patent claims from the SOFTIC symposium of 1993, where patent officials from JP, US and EU judged the patentability of an example algorithm at different levels of concretisation. The European representative was more willing than his colleagues from US and JP to grant patents on abstract claims, but even he shyed back from granting them at the level that really represents the innovative achievement. Tamai shows how this inconsistency leads to a series of other inconsistencies. Tamai sees only two ways out of the inconsistency: (1) acceptance of abstract claims (2) exclusion of software patents.
- KONNO Hiroshi: The Karmarkar Patent and Software -- Is Math Patentable?
- In diesem Buch, das in Japan große Beachtung erfuhr, ergründet KONNO Hiroshi, Professor and der Universität Tokio und japanischer Papst der betriebswirtschaftlich angewandten Mathematik, was hinter der Ausdehnung der Patentierbarkeit auf Software, Mathematik und Finanzwesen steckt. Konno geht von einigen faszinierenden Beispielen bahnbrechender Leistungen in der mathematischen Forschung aus, nämlich der Karmarkar-schen Innenpunkt-Methode der Linearen Programmierung von 1984. Diese Methode hatte sowohl einen seltenen Rang als bahnbrechende Leistung als auch eine entscheidende Bedeutung für viele industrielle Großprojekte. Wenn etwas in der Mathematik und Informatik sich zum Patentieren eignete, dann die Karmarkar-Methode. AT&T erhielt 1988 tatsächlich ein Patent auf diese Methode. Dieses Patent brachte jedoch keine bedeutenden Gewinne für den Inhaber AT&T, verursachte aber erheblichen Flurschaden in der Industrie und in der universitären Mathematik. Viel vom dem positiven Zyklus des Zusammenwirkens, der zuvor das Klima zwischen Universitäten und Firmen geprägt hatte, ging verloren. Die AT&T-Laboratorien erzeugten seit ihrer Umorientierung auf Patentproduktion keine Nobelpreisträger mehr und Dr. Karmarkar selbst wurde vom Netzwerk seiner Mathematik-Kollegen abgeschnitten, die ihn bald an Leistungen weit überragten. Konno fesselt den Leser mit Einführungen in die Lineare Programmierung und das Patentrecht, die eng mit der Dramatik der Ereignisse um das Karmarkar-Patent verwoben sind. Das gelingt ihm u.a. deshalb besonders gut, weil er selber die Kontrahenten kennt und bei wesentlichen Konferenzen auf dem Podium oder in der ersten Reihe saß. Dies gilt auch für die Auseinandersetzungen innerhalb des Patentwesens, denn es war Konno, der in Japan Einspruch gegen das Karmarkar-Patent einlegte. In Japan wurde das Karmarkar-Patent zunächst wegen seines mathematischen Gehaltes abgelehnt. Doch dann änderte das Patentamt unter dem Druck des vorgesetzten Industrieministeriums (MITI) seine Meinung. Dieses wich wiederum vor dem Druck der amerikanischen Regierung zurück. Die japanischen Patentanwälte verbreiteten dazu eine Stimmung, wonach Softwarepatente eine unausweichliche Tendenz der Zeit sind und es im Recht weniger darauf ankomme, konsistent und gesetzestreu zu argumentieren, als mit der Zeit zu gehen. Doch die Praxis der Softwarepatentierung entspricht keinem aktuellen Bedürfnis der Softwarebranche und verursacht vor allem Ärger und Aderlässe, an die die Branche sich bis heute nicht gewöhnt hat. Den amerikanischen Anwälten hingegen hat die erweiterte Patentierbarkeit einen zusätzlichen Markt von 2 Milliarden USD pro Jahr beschert. Jedesmal wenn die Patentierbarkeit durch Gerichtsbeschlüsse erweitert wurde, knallten auf Festbanketten in New-Yorker Hotels die Korken. 'Man muss nicht Hercule Poirot heißen, um zu erkennen, wer hier die treibende Kraft ist', meint Konno. Aber es besteht weiterhin Hoffnung, denn die junge Generation hat die Probleme nicht aus den Augen verloren.
- Titus 1967: Pros and Cons of Patenting Computer Programs
- In 1967 programmers and computing companies almost uniformly resisted the idea of software patentability, proposed to them by the US Patent Office. Senator Brooks expressed alarm at the PO's move to introduce software patents through a set of guidelines and demanded that these should be "set aside until ... responsible officials at the policy-making levels of the executive and legislative branches of government have had an opportunity to take whatever action might be necessary to protect the public interest". Patent lawyers and representatives of patent-experienced companies such as Bell Laboratories argued in favor of the PO's move. BEMA and IBM argued that programs "are not within the present patent statutes and are not suitable for patent protection". The chairman of the Association for Computing Machinery (ACM) published a poll, according to which most programmers opposed to the idea of software patenting and stressed that "the vital issue of computer program patents should not be left to the deliberation of patent attorneys in government and industry". This is a fairly detailed account of the struggle and the various positions at the time. It shows how little has changed in the 35 years since then.
- Laszewski 2002: What is Technical in Europe? Patentability of Data Processing
- Löwenheim 1990: Legal Protection for Computer Programs in West Germany
- Dr Matthew Lee: Patentability of Software-Related Inventions
- EPO TBA 2002/03 T 49/99: information modelling not technical, computer-implementation not new
- In March 2002, a Technical Board of Appeal at the European Patent Office (EPO) rejects a patent application for a computerised information modelling system on the grounds that the subject matter is not an invention according to Art 52 EPC. The Board argues largely in the original spirit of the EPO and differs significantly from some other recent EPO caselaw. This is an important reason why industrial patent lawyers are pressing for new patentability legislation. Under a CEC/McCarthy directive, EPO decisions such as this one would no longer be possible.
- EPO 1990: T 0022/85
- A Technical Board of Appeal of the European Patent Office (EPO) rejects a patent application which is directed to a program for computers. In 1984, the EPO's examiners had rejected the patents based on the original Examination Guidelines of 1978, saying that the claims referred to a "program for computers". The appellant argued on the basis of newer Guidelines and caselaw that his claims are directed to technical effects and not a program as such. The Board of Appeal rejects the appeal by arguing indirectly that the use of general-purpose computer hardware does not confer technicity on an abstract method: "Abstracting a document, storing the abstract, and retrieving it in response to a query falls as such within the category of schemes, rules and methods for performing mental acts and constitutes therefore non-patentable subject-matter under Article 52 EPC" and "The mere setting out of the sequence of steps necessary to perform an activity, excluded as such from patentability under Article 52 EPC, in terms of functions or functional means to be realised with the aid of conventional computer hardware elements does not import any technical considerations and cannot, therefore, lend a technical character to that activity and thereby overcome the exclusion from patentability."
- European Patent Office: High Above Legality
- The European Patent Office finances itself by fees from the patents which it grants. It is free to use a certain percentage of these fees. Since the 1980s the EPO has illegally lowered the standards of technicity, novelty, non-obviousness and industrial applicability and abolished examination quality safeguards so as to increase the number of granted patents by more than 10% and the license tax on the industry by 26% per year. As an international organisation, the EPO is not subject to criminal law or taxation. The local police's power ends at the gates of the EPO. High EPO officials have inflicted corporal injury on their employees and then escaped legal consequences by their right to immunity. The work climate within the EPO is very bad, leading to several suicides per year. The quality of examination reached a relative high in the 80s but has after that been deteriorating, partly because the EPO had to hire too many people too quickly for too low wages. Examiners who reject patents load more work on themselves without getting more pay. Examiners are treated by the EPO management as a kind of obstacle to the corporate goal of earning even more patent revenues. The high-level employees of the EPO owe their jobs to political pressures from within national patent administrations and do not understand the daily work of the office. The EPO has its own jurisdictional arm, consisting of people whose career is controlled by the EPO's managment, which again is strongly influenced by industry patent lawyers (on the Standing Advisory Committee (SACEPO)) and by the Office's internal climate. The national organs that are supposed to supervise the EPO are all part of the same closed circle, thus guaranteeing the EPO managment enjoys feudal powers beyond constitutional legality, and that whatever they decide is propagated to the national administrations and lawcourts.