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Re: [LUG] Fw: [ffii] EPO seeks to validate software patents without the European Parliament

 

On Tue, 17 Mar 2009 12:25:49 +0000
Neil Williams <linux@xxxxxxxxxxxxxx> wrote:

The questions and my initial answers:

http://www.linux.codehelp.co.uk/serendipity/index.php?/archives/162-If-the-law-is-inconvenient,-unelected-bodies-just-change-the-rules.html

Communication from the Enlarged Board of Appeal concerning case G 3/08

In accordance with Article 112(1)(b) EPC, the President of the European
Patent Office has referred the following points of law concerning the
limits of patentability of programs for computers within the meaning of
Article 52(2)(c) and (3) EPC to the Enlarged Board of Appeal. The case
is pending under ref. No. G 3/08.

The questions referred are:

1. Can a computer program only be excluded as a computer program as
such if it is explicity claimed as a computer program?

No, any computer program is excluded no matter how it is claimed
because a computer program is not patentable. The patent claim must
contain material other than a computer program and the computer program
itself cannot be claimed as part of any patent claim nor can any
computer program ever be deemed to have infringed any patent claim even
if that claim was previously based entirely in hardware.

2.(a) Can a claim in the area of computer programs avoid exclusion
under Art. 52(2)(c) and (3) merely by explicity mentioning the use of a
computer or a computer-readable data storage medium?

No patent claim can be made against any method expressed as a computer
program. It is the software that matters, not the paraphernalia of
computers. Therefore, whether a computer or computer-readable data
storage media are mentioned, any software is automatically excluded
from patentability. If the claim makes no sense without that software,
then the claim is excluded.

(b) If question 2(a) is answered in the negative, is a further
technical effect necessary to avoid exclusion, said effect going beyond
those effects inherent in the use of a computer or data storage medium
to respectively execute or store a computer program?

Any effect is excluded from patentability if that effect is or can be
executed by software. If the effect becomes possible via software at
some point in the future, the software cannot be deemed to have
infringed the patent claim because software is not patentable.

3.(a) Must a claimed feature cause a technical effect on a physical
entity in the real world in order to contribute to the technical
character of the claim?

Effects on the "real world" are irrelevant - if the effect is or can be
performed in software, the effect is excluded and any software
implementing that effect cannot be deemed to have infringed the patent
claim. The real world still includes the electrons that implement the
effect of software but software is not patentable.

(b) If question 3(a) is answered in the positive, is it sufficient that
the physical entity be an unspecified computer?

No, the effect is not the issue, the method is the issue.

(c) If question 3(a) is answered in the negative, can features
contribute to the technical character of the claim if the only effects
to which they contribute are independent of any particular hardware
that may be used?

Portability infers software and software is not patentable. A claim
must be excluded if it is wholly or partially implemented as software
or can be wholly implemented as software and no software implementation
can be deemed to have infringed the patent claim either in whole or in
part now or in the future because software is not patentable.

4.(a) Does the activity of programming a computer necessarily involve
technical considerations?

No. Programming is a form of speech, it uses languages and different
languages have different requirements for technical expertise. Some
languages require little or no technical expertise to generate an
effect within a computer by means of software.

(b) If question 4(a) is answered in the positive, do all features
resulting from programming thus contribute to the technical character
of a claim?

No software programming can have any technical character for
patentability because software is not patentable.

(c) If question 4(a) is answered in the negative, can features
resulting from programming contribute to the technical character of a
claim only when they contribute to a further technical effect when the
program is executed?

No, if the features result from programming then the software to effect
those features is not patentable and the feature itself is not
patentable. No effect of a computer program can be wholly or partially
patentable.

The text of the referral in the English language is available under
Referrals pending before the Enlarged Board of Appeal.

The Enlarged Board of Appeal considering the referral will be composed
as follows:

* P. Messerli (CH) (Chairman)
* M. Vogel (DE)
* D. Rees (GB)
* M. Dorn (DK)
* K. Härmand (EE)
* A. Klein (FR)
* J.-P. Seitz (FR)

It is expected that third parties will wish to use the opportunity to
file written statements in accordance with Article 10 of the Rules of
Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff). To
ensure that any such statements can be given due consideration they
should be filed together with any new cited documents by the end of
April 2009 at the Registry of the Enlarged Board of Appeal, quoting
case number G 3/08. An additional filing of the statement and documents
in electronic form would be appreciated (Dg3registry_eba@xxxxxxx ).


-- 


Neil Williams
=============
http://www.data-freedom.org/
http://www.nosoftwarepatents.com/
http://www.linux.codehelp.co.uk/

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