Re: Software Patents Re: MP3 decoders' non-freeness
Alexandre Dulaunoy wrote:
> On Tue, 6 Aug 2002, Arnoud Galactus Engelfriet wrote:
> > In other words, even though you think that 52(2) and (3) can only
> > be explained one way, do not be surprised if national courts decide
> > otherwise. IIRC the UK courts routinely accept software-related
> > patents, and even the Germans often have no problems with this.
>
> Ok. Please explain me how you can make Software Patents valid
> with the provision 52(3) ? As you can see 52(c) clearly exclude programs
> for computers and the 52(a) excludes also the mathematical methods. I
> won't talk about the (b) but it's a also a possibility for Software
> Creation.
Are you familiar with the EPO Board of Appeals caselaw? They
give a pretty thorough analysis in their IBM/Computer program
cases. The basic gist, however, is what I said in the URL you
snipped. Article 52(3) says that the exclusion only applies
when the invention is a program as such. An invention that is
more than a program as such therefore is not excluded.
The tricky question is, when is a program more than a program
"as such"?
The EPO Boards take all the categories from 52(2) together,
summarize them as "non-technical inventions", and invert that
to conclude "technical inventions are patentable, including
technical inventions that use software". The Germans and
British appear to be following this reasoning.
You can also reason, if a program can cause a general purpose
processor to do the same thing as a dedicated hardware board
can do, and that board does something patentable, then the
program must also be patentable. Otherwise you're being
unfair to the inventor. This is what the Dutch patent office
(Octrooiraad) did in the early '90s with a novel telephony
switch.
BTW, I think this is getting off-topic for debian-legal, but
if you want to continue in private e-mail, be my guest.
Kind regards,
Arnoud Engelfriet
--
Arnoud Engelfriet, (almost) Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
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