[ Date Index ] [ Thread Index ] [ <= Previous by date / thread ] [ Next by date / thread => ]
Sorry Neil I've lost the thread on this one - do we need to contact our MEP's about this? Tom te tom te tom On Tuesday 17 March 2009 13:06, Neil Williams wrote: > 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 ). -- The Mailing List for the Devon & Cornwall LUG http://mailman.dclug.org.uk/listinfo/list FAQ: http://www.dcglug.org.uk/linux_adm/list-faq.html