tag:blogger.com,1999:blog-5574479.post5327745041229668277..comments2024-03-29T12:23:31.959+00:00Comments on The IPKat: You made this mess, you clean it up: JURI pass the buck to Council to resolve the deadlock on the unitary patentVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger17125tag:blogger.com,1999:blog-5574479.post-48777446744259076872012-10-20T18:37:06.473+01:002012-10-20T18:37:06.473+01:00"per se" and "as such" cannot ..."per se" and "as such" cannot be ignored, because the PURPOSE of software must be taken into account.<br /><br />If the purpose is "just a program," (whatever that means, which I am not sure, as I certainly don't waste time programming for no apparent reason) then no. But if the purpose is for something (to accomplish something) that is itself patent worthy, then by all means yes. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42884369881497631882012-10-18T13:47:42.982+01:002012-10-18T13:47:42.982+01:00I can't understand the controversy about sayin...<i>I can't understand the controversy about saying that software patents are excluded from patentability under the EPC. EPC 52(2)(c) says that programs for computers are not inventions, and 52(1) says that patents may only be granted for inventions.</i><br /><br />And Art. 52(3) EPC (often forgotten by the critics of the EPO practice) says that<br />Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such.<br /><br />It's worth noting that, besides "programs for computers", Art. 52(2) EPC also excludes from patentability, for example, "discoveries, scientific theories and mathematical methods". But obviously the legislator didn't intend to exclude from patentability novel and inventive technical uses of such "discoveries, scientific theories and mathematical methods" (because that would exclude, basically, all of invention), hence the importance of the "as such" provision of Art. 52(3) EPC.<br /><br />For this reason, if the legislator had also intended to prevent the patentability of novel and inventive technical applications of computer programs (whether it is methods or devices controlled by such computer programs), then he would not have put "programs for computers" in the list of items excluded from patentability "as such" under Art. 52(2) EPC, but among the <b>absolute</b> exceptions to patentability under Art. 53 EPC, which is not tempered by any equivalent to the "as such" provision of Art. 52(3) EPC.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66912447796981277932012-10-18T10:57:16.174+01:002012-10-18T10:57:16.174+01:00I can't understand the controversy about sayin...I can't understand the controversy about saying that software patents are excluded from patentability under the EPC. EPC 52(2)(c) says that programs for computers are not inventions, and 52(1) says that patents may only be granted for inventions.<br /><br />Sure, there's scope for chicanery and debate about the argument about what this means, but the point remains that the EPC excludes computer programs from patentability, and that there are very good reasons for this.<br /><br />The EPO is far too willing to grant patents for what are, in substance, programs for computers.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1065447845408406942012-10-17T13:58:12.787+01:002012-10-17T13:58:12.787+01:00"Oh God, the FOSS brigade are out again. When..."Oh God, the FOSS brigade are out again. When will they realise that this issue really has nothing to do with them?"<br /><br />And you will tell us that EPO does not grant software patents again?<br /><br />Be prepared for the big return of the "brigade".Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36747448622478100742012-10-17T12:34:38.360+01:002012-10-17T12:34:38.360+01:00Max: I think those interested in FOSS are not so i...Max: I think those interested in FOSS are not so interested in the facts as they are, because the FOSS position is an ideological, rather than an advisory, position. But I think they have a clear view as to how they would like (want/hope) the facts to be, or to become. I think we all can state how we would like the system to develop: the FOSS position is one view in a set of competing views.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21781911732472178392012-10-17T11:59:59.802+01:002012-10-17T11:59:59.802+01:00Anonymous, well said. Question is, do FOSS people ...Anonymous, well said. Question is, do FOSS people want the facts. Or do they not want to be bothered with them?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67428522627773238872012-10-17T08:41:39.404+01:002012-10-17T08:41:39.404+01:00MaxDrei, even now, I don't know of many attorn...<b>MaxDrei</b>, even now, I don't know of many attorneys-at-law or other lawyers who would call themselves "patent lawyers". Patents are just too narrow a niche for lawyers: they'll usually call themselves IP lawyers, with competition law often dropped in. In my experience, talk of "patent lawyers" (coupled with absolute ignorance about the existence of technically qualified patent attorneys and agents) is usually the hallmark of those with only a very superficial acquaintance of the patent system, in particular among the FOSS community. Hence my utter scepticism about that anonymous.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78450684529994230582012-10-16T21:01:29.038+01:002012-10-16T21:01:29.038+01:00In the past, patent lawyers were as rare as teeth ...In the past, patent lawyers were as rare as teeth on a hen. Now though, every second attorney-at-law claims to be one. It's the glamour attached to it, these days.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22558019402992908982012-10-16T17:45:32.533+01:002012-10-16T17:45:32.533+01:00Software patents are, of course, expressly prohibi...<i>Software patents are, of course, expressly prohibited under the EPC</i><br /><br />Where?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14013198194836254852012-10-16T16:44:49.205+01:002012-10-16T16:44:49.205+01:00Software patents are, of course, expressly prohibi...<i>Software patents are, of course, expressly prohibited under the EPC</i><br /><br />First, tell me what you understand as a software patent, then where in the EPC they are expressly forbidden.<br /><br />Strangely, for somebody claiming to be a "patent lawyer", you don't seem to be very familiar with the ins and outs of Art. 52 EPC, nor with the case law of national courts upholding patents granted by the EPO.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75128567491466983122012-10-16T16:42:19.062+01:002012-10-16T16:42:19.062+01:00Reasonable comment from that last anonymous. Pate...Reasonable comment from that last anonymous. Patent lawyers can no longer have the patent business all to themselves. These days, it's highly political. <br /><br />If I had to debate CII with a FOSS or biotech with a Green, I'm inclined to agree, that I would learn more from the debate with the FOSS than I would get out of what would be a highly emotional argument with the Green. MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-47360617200424652842012-10-16T16:07:50.714+01:002012-10-16T16:07:50.714+01:00MEP Rapkay appears to be an impressively clear and...MEP Rapkay appears to be an impressively clear and persuasive speaker, which concerns me as I disagree with almost everything he has said on the subject of the EU patent and the proposed court.<br /><br />Regarding this issue having nothing to do with the 'FOSS brigade', I disagree. The worst failings of the patent system at the moment are, in my opinion, centred on IT, telecoms and computer-implemented inventions. Software patents are, of course, expressly prohibited under the EPC, but the EPO has granted countless thousands patents which look an awful lot like software patents. A large proportion of these are probably invalid, but it will cost you rather a lot to prove this one way or the other.<br /><br />The input of the 'FOSS brigade' into the debate is, in my opinion, welcome, as they tend to be rather more tech-savvy and better connected with the software industry than most patent lawyers. I say that as a patent lawyer who has worked on several patent cases involving electronics and IT. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78543908892405192172012-10-16T11:17:54.834+01:002012-10-16T11:17:54.834+01:00Readers interested in bifurcating might find inter...Readers interested in bifurcating might find interesting the Sept/Oct 2012 issue of The Patent Lawyer, where questions about litigating patents in Germany are answered. It is true that technically qualified federal judges do validity but in the district court patent infringement track none of the three instances have any such judges. <br /><br />Nevertheless, we are told, it is "relatively common" for the infringement courts to grant interlocutory injunctive relief.<br /><br />This is what Americans might call a "strong" patent system. Governments world-wide used to compete to be the most "patent friendly" jurisdiction. But they are not doing that any more are they?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1604641539672510542012-10-16T10:25:37.218+01:002012-10-16T10:25:37.218+01:00Oh God, the FOSS brigade are out again. When will ...Oh God, the FOSS brigade are out again. When will they realise that this issue really has nothing to do with them?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-34803418211155306612012-10-16T08:48:48.095+01:002012-10-16T08:48:48.095+01:00Maybe you should read this new paper from the Max ...Maybe you should read this new paper from the Max Planck Institute:<br /><br />Ullrich, Hanns, Select from Within the System: The European Patent with Unitary Effect (October 1, 2012). Geiger, Chr. ed., What Patent Law for Europe?, Paris (Litec), Forthcoming; Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-11. Available at SSRN: http://ssrn.com/abstract=2159672<br /><br />"Clearly, such EPC-based “European” patents do not constitute “European”, namely European Union intellectual property rights within the meaning of Article 118 para. 1 TFEU. Therefore, the question arises whether it suffices that the substance of the European patent with unitary effect is made a matter of Union law."<br /><br />I wouldn't be as confident as the Amerikat, that this regulation can be passed without full integration of substantive patent law inside the regulation...Gibushttps://www.unitary-patent.eunoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12403916383640388792012-10-16T08:26:23.337+01:002012-10-16T08:26:23.337+01:00No I don't think that is call to waive less p...No I don't think that is call to waive less power to the EPO at all. The EPO doesn't factor into this debate. It was a comment regarding Council's decision in June. The provisions on substantive law included in the Regulation concern infringement not validity so issues about patentability don't enter into the mix either. Annsley Merelle Wardhttps://www.blogger.com/profile/09184706067469338128noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42668364360721133712012-10-16T07:50:14.587+01:002012-10-16T07:50:14.587+01:00Thanks for this transcription. Nevertheless, be ca...Thanks for this transcription. Nevertheless, be careful with the live translation of the European Parliament, spcially English. Some import stuffs are often left behind...<br /><br />An important quote, as transcripted in this post, from rapporteur Rapkay is: <em>Secondly, given what I have heard in the various discussion there needs to be some arrangement which means that Parliament is not cut out of the picture in future and our rights are protected. We will not be able to accept any solution where we give up our right legislate to someone else, whomever that is. The President of the EU Parliament will never be able to sign up to that sort of thing where it cuts the Parliament's rights out of the picture.</em><br /><br />Don't you think this is a call to waive less power to the EPO, by including substantive patent law, notably patentability rules, in the regulation? As repeatidly stated on comments in this blog, such inclusion may be mandatory for compliance with Art. 118 TFEU...<br /><br />If readers are interested by a reeaction to JURI meeting, just a couple of hours after its end, they can read this <a href="https://www.unitary-patent.eu/content/european-parliament-demands-council-stops-derailing-unitary-patent" rel="nofollow">press release</a>.<br /><br />FInally, the opinion of the EP Legal Service referred in the beginning of this post can be found <a href="https://www.unitary-patent.eu/sites/www.unitary-patent.eu/files/SJ-0462-12_Legal%20opinion.pdf" rel="nofollow">here</a>.Gibushttps://www.unitary-patent.eunoreply@blogger.com