[Discussioni] [ffii] European Commission: EPO Case Law Not Binding - Software Not Patentable

[Alberto Cammozzo]

	La Commissione Europea sembra aver fatto marcia indietro
	sulla questione brevetti.

	Commenti su News.com e Zdnet:
	http://news.com.com/Europe+No+patents+for+software/2100-1014_3-6076418.html?tag=nefd.top
	http://news.zdnet.co.uk/business/legal/0,39020651,39270929,00.htm

	Alberto


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From: Jonas Maebe <jmaebe a ffii.org>
Subject: [ffii] European Commission: EPO Case Law Not Binding - Software Not
	Patentable
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PRESS RELEASE -- [ Europe / Economy / ICT ]

========================================================================
European Commission: EPO Case Law Not Binding - Software Not Patentable
========================================================================

Brussels, 24 May 2006. In a reply to a question from Polish MEP and  
inventor Adam Gierek, the European Commission has confirmed that the  
European Patent Office's (EPO) case law is not binding for member  
states, nor (under the proposed Community Patent regulation) for the  
European Court of Justice (ECJ). For the first time, the Commission  
has also clearly stated that computer programs are not patentable  
subject matter, without hiding behind the infamous "as such" cop-out.

Prompted by a previous Commission statement that "case law which the  
EPO developed for the European patent will apply to the Community  
patent", Professor Gierek's question pointed out that EPO practice  
differs from recent software patent case law both in Poland and the  
UK and that Mr Rocard MEP, rapporteur for the software patents  
directive in Parliament, stated that its failure was a rejection of  
the EPO's extension of patentability to software programs.

The Commission replied that the pre-grant phase of patents could  
still be still be governed by the European Patent Convention (and  
thus be handled by the EPO), but that post-grant aspects such as  
validity and litigation would fall under Community Patent regulation.  
The ECJ would also be able to form its own opinion, independent of  
EPO case law. Their conclusion is that in practice, the EPO would  
therefore have to follow Community Patent case law and not the other  
way round.

FFII President Pieter Hintjens said: "I'm stunned. The Commission has  
been denying reality for so long and pretending that the earth was  
flat and apples did not fall downwards, whereas the EPO has been  
obnoxiously granting unwarranted pieces of paper whose only  
innovative effect has been in the domain of patent litigation. Does  
the Commission now accept that the EPC rules do actually rule? Or  
have I misunderstood something?"

He further added: "The proposed Community patents will be granted by  
the EPO: a non-accountable, non-Community organisation, with no  
independent appeal possible. The Commission says this is no problem  
since the ECJ can invalidate the granted patents in infringement  
cases. That is however only true if it comes to civil litigation,  
which is often too expensive for SMEs, forcing them to pay for a  
license. Therefore software patents not yet taken to court will  
impose an enormous burden on the industry."

"It is nevertheless good to see that the Commission no longer  
presents EPO case law as 'the status quo which must be codified'.  
However, it relies too heavily on courts to keep Europe safe from  
software patents. Whether or not Europe should have software patents  
is not a legalistic detail which should be left to courts to sort  
out. It is a crucial economic policy decision which must be taken by  
our elected representatives."


========================================================================
Background information
========================================================================

* Commission saying computer programs not patentable?

The statement by the Commission that "patents granted for a subject  
matter (such as computer programs), which is excluded from  
patentability pursuant to Article 52 EPC" is not necessarily a 180  
degree turn.

For example, in a recently published decision the EPO's Technical  
Board of Appeal (TBA) approved a patent by Microsoft on allowing copy/ 
paste of arbitrary data as opposed to only a few system-defined  
kinds. In its justification, the TBA literally stated that as soon as  
a computer program is executed on a computer, they no longer  
considered it to be a computer program (but a "computer-implemented  
method/invention") and consequently perfectly patentable.

The Commission may be using a similar wordplay. Nevertheless, its  
confirmation of the fact that the EPO's case law is not gospel is a  
step in the right direction. This starkly contrasts to its position  
during the software patent directive debate, where it always talked  
about "harmonisation of the status quo" when referring to the  
codification of European software patents according to EPO practice.


* EPO ruled by the ECJ?

On the topic of the ECJ forcing the EPO to adopt a particular  
practice, FFII analyst Ante Wessels added: "It is not true that the  
EPO would necessarily apply and be bound by the new unitary Community  
Patent law. The Community Patent merely creates separate legal  
systems which allow for different interpretations. There is no  
hierarchy - the ECJ is not above the EPO and cannot tell it what to  
do. The EPO can sell Community titles, Community software patents,  
and then the ECJ can say: 'Sorry the Community title you just bought  
is worthless'. The Commission advocates a cheap trick. And we can  
only hope the ECJ will indeed invalidate software patents."


========================================================================
Links
========================================================================

* Question by Adam Gierek MEP (13 April 2006)
 http://wiki.ffii.org/Gierek060413En

* Answer by the Commission (18 May 2006)
 http://wiki.ffii.org/Gierek060518En

* TBA decision T 0424/03 - 3.5.01 on "Clipboard formats I/ 
MICROSOFT" (from February 2006, but only recently published)
 http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf

* Provisional patent publication EP0717354: Data transfer with  
expanded clipboard formats (Microsoft)
 http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=EP0717354&F=0

* Community Patent analysis:
 http://consultation.ffii.org/

* Permanent link to the press release
 http://wiki.ffii.org/ComGierekPr060524En


========================================================================
Contact Information
========================================================================

Jonas Maebe
FFII Board Member
jmaebe a ffii.org
(Dutch/English)

Ante Wessels
FFII analyst
+31-6-100 99 063
ante a ffii.org
(Dutch/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion a ffii.org
(French/English)


========================================================================
About the FFII -- http://www.ffii.org
========================================================================

The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.


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