tag:blogger.com,1999:blog-5574479.post7489585302588148946..comments2024-03-28T09:05:22.006+00:00Comments on The IPKat: G 3/08 (Software Patents) decision is out - Tufty the Cat vindicatedVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger16125tag:blogger.com,1999:blog-5574479.post-69156555345106624782010-05-19T12:28:46.622+01:002010-05-19T12:28:46.622+01:00"However, I would have very serious doubts ab..."However, I would have very serious doubts about whether it will be possible to come to any sort of agreement among the member states of either the EU or the EPC that would stand any chance of resolving the issue once and for all."<br /><br />You don´t need that to pass national clarifications to the European Patent Convention.zoobabhttps://www.blogger.com/profile/16896135106354266238noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82633091516263377582010-05-14T22:08:53.089+01:002010-05-14T22:08:53.089+01:00@MaxDrei: I guess that someone was me, and yes, it...@MaxDrei: I guess that someone was me, and yes, it is a very small gripe and certainly not intended as a criticism of the EPO technicality/COMVIK approach.<br /><br />As the EBA observed, the various Boards seem to agree that the COMVIK approach is the correct approach (or at least an approach that leads to the correct results when properly applied). Given that this already appears to be settled, at least witin the EPO, the way forward is to clarify the concept of technicality where that is possible.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6468921738890770942010-05-14T12:23:46.134+01:002010-05-14T12:23:46.134+01:00Here is what I just posted to the Patently-O threa...Here is what I just posted to the Patently-O thread, in reply to a writer who categorizes "technical" as "toxic"<br /><br />"Take the question in the context of civil law and the way the law develops in such jurisdictions. No Binding Precedent, just a bunch of blind TBA members, groping forward into the cloud that is the future. <br /><br />Looking back the way we came, all is crystal clear. Moving forward, the EBA has its 24 TBA scouts out there, feeling their way forward.<br /><br />On obviousness, 103 (Art 56), the EPO is in much better shape than SCOTUS. As to 101 (Art 52), we in Europe await Bilski, to see what sort of a fist SCOTUS can make of that ticklish problem.<br /><br />Somebody on the parallel IPKat thread complains about different EPO Boards having different views on "technical", in the context of claimed subject matter that involves a "mental act". Good so. Their argument will flush out the purest line of legal advance. Meanwhile, I must say, if that's the limit of what's wrong at the moment with "technical", it's a pretty small gripe. Wasn't it Lord Justice Jacob, who pointed out that, when it comes to the validity of a claim, a "puzzle at the edge" is not a good enough reason to revoke the claim. So it is too, with "technical"."MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9349616350863957342010-05-13T21:02:44.557+01:002010-05-13T21:02:44.557+01:00@Gobhicks:
Not only the EPO and UKIPO have differe...@Gobhicks:<br />Not only the EPO and UKIPO have different ideas about "technical", there are also clear divergences between different Boards of the EPO. Hard to say if a (better worded) referral could have cleared that up, but I think it would have had a chance. Especially in respect of alleged technical effects that somehow hinge on the intervention of the human mind.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71938699394571853522010-05-13T20:55:52.687+01:002010-05-13T20:55:52.687+01:00The opinion shows that the EPO needs to do some se...The opinion shows that the EPO needs to do some serious quality control in its legal department (or whatever part of it wrote the referral). It is clearly unacceptable that the EBA needs to teach the president elementary logic as it does in point 11.2.3.<br /><br />In a few years the EPO might lose face in an even more brutal way when the EBA declares some of the recent "raising the bar" Rule amendments incompatible with the EPC.<br /><br />The good thing is that Question 1, although inadmissible, gave the EBA the opportunity, which it took, to explain certain crucial points of the established case law in a way that will hopefully make an end, at least among national judges, to the most common misconceptions.<br /><br />Maybe the best part is the beginning of point 10.13.1. In response to the argument in the referral that "if one were to follow the reasoning of T 424/03, overcoming the exclusion of programs for computers would become a formality, ..." the EBA responds that this indeed is the consequence of following the precepts of T 1173/97, which is the very decision that the referral uses to show that there are conflicting decisions which merit the referral of Question 1.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-36196108631175125272010-05-13T17:13:04.684+01:002010-05-13T17:13:04.684+01:00I quite like the thing about the cup with the pict...I quite like the thing about the cup with the picture on it - maybe even SCOTUS would get that!<br /><br />Nevertheless, regardless of whether you use the "contribution" approach or the "technical inventive step" approach, the EPO and UKIPO still seem to have very different ideas about "technical"Gobhicksnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82685739155308687722010-05-13T12:03:30.928+01:002010-05-13T12:03:30.928+01:00From SCOTUS, no Bilski Decision yet, on 35 USC 101...From SCOTUS, no Bilski Decision yet, on 35 USC 101 (their Art 52). Will G3/08 help them forward at all? Were they hoping for some help?<br /><br />Surely not. In KSR, SCOTUS has done obviousness (103) already, and in a way incompatible with G3/08. Because America lacks the EPO's effective "technical" Art 56 filter, 101 patent-eligibility is a real ticklish problem.<br /><br />No wonder Bilski is taking a long time.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75562696313366235422010-05-13T10:22:12.119+01:002010-05-13T10:22:12.119+01:00The interesting point will be to see how the UK Co...The interesting point will be to see how the UK Courts now deal with the Aerotel/Macrossan test. A key point in Symbian was in paragrpah 46 The fact that there are now three such decisions of the Board subsequent to Aerotel which appear to support the approach disapproved in Aerotel might suggest that this court should now adopt that approach. We do not agree. First, there is no decision of the Enlarged Board. <br /><br />There still strictly isn’t a decision but given the forcefulness of paragraph 10.13 of G3/08 I can’t see much room for maneuverAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-84884845424229805602010-05-13T09:56:40.282+01:002010-05-13T09:56:40.282+01:00The important element in this EBoA decision is not...The important element in this EBoA decision is not that the referral is dismissed, but that the two allegedly conflicting decisions are not what current EP case law is about. <br /><br />The EBoA is very clear in expressing support for the approach followed in T 154/04 (Duns): "An elaborate system for taking that effect into account in the assessment of whether there is an inventive step has been developed, as laid out in T 154/04, Duns." and "It would appear that the case law, as summarised in T 154/04, has created a practicable system for delimiting the innovations for which a patent may be granted."<br /><br />The core elemenent in T 154/04 is "Novelty and inventive step, however, can be based only on technical features".Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32446220857898730922010-05-13T07:49:13.248+01:002010-05-13T07:49:13.248+01:00The EBOA was very kind to issue this first class r...The EBOA was very kind to issue this first class rebuke while Mrs. Brimelow still is in office, as if it was sending a message to her and her successors saying "better think it over twice before you bother us again". This decision is the ultimate tribute to her presidency, I'm glad to see that there are some people left in this outfit who are allowed to think.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-35577161416017164572010-05-12T21:21:08.758+01:002010-05-12T21:21:08.758+01:00Of course it is up to politics to act. The mistake...Of course it is up to politics to act. The mistake is that the "patentable subject-matter" issue in genral, and software patentability in particular so far has been treated as a specialist patent law problem, in a legalistic way.<br /><br />Should we hope for a major crisis that has a similar effect as the present crisis in Greece?Reinier Bakelsnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-88315760695259116982010-05-12T20:27:59.578+01:002010-05-12T20:27:59.578+01:00I guess I was right with my initial hunch then.
E...I guess I was right with my initial hunch then.<br /><br />EdTAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6154128765498938182010-05-12T20:21:02.267+01:002010-05-12T20:21:02.267+01:00Worth a look
http://news.swpat.org/2010/05/epo-pa...Worth a look<br /><br />http://news.swpat.org/2010/05/epo-patents-review-inadmissible/Gentoohttps://www.blogger.com/profile/05063939954837162413noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-41828293694715336502010-05-12T19:27:14.835+01:002010-05-12T19:27:14.835+01:00A long 60 pages just to confirm current case law a...A long 60 pages just to confirm current case law as bang on (with a remarkable absence of any caveats or nuances). Still, it does give them scope to start out quite respectful towards the Referral, and then become quite dismissive by the end.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-81344596796080603242010-05-12T18:53:05.084+01:002010-05-12T18:53:05.084+01:00The passage from Alice seems to have something to ...The passage from Alice seems to have something to do with the patentability of music ("'... the tune's my own invention'"). That must be worth a reference to the Enlarged Board!Peter Groveshttps://www.blogger.com/profile/05020506617934637856noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68074851621020853982010-05-12T17:07:00.168+01:002010-05-12T17:07:00.168+01:00Summary: deviation is not divergence. Classic.Summary: deviation is not divergence. Classic.Scott Robertsnoreply@blogger.com