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Re: libdts patent issue?

Nathanael Nerode wrote:
> Arnoud Engelfriet wrote:
> >I don't know of any caselaw in any European country in the past ten
> >years that says "This European patent is invalid because it's a
> >computer program as such."
> That's not the caselaw you're looking for.
> The caselaw you're looking for is "This European patent is invalid because 
> it is a mathematical method."

As such. Art. 52(3) EPC. It's actually easier to make sure you
don't claim math as such than software as such. Just state
a practical application in the claim.

Here's a claim that would _not_ be maths as such under European law:
"A method of encrypting a bitstream A using a key B that is the
same length as A, comprising computing A XOR B".

Of course this method is long known, but that's question number two.

I occasionally see courts dealing with the computer program
exception, but I've never seen caselaw about maths as such.
Probably because me and my colleagues know that you must
claim a practical application of the mathematics, and fortunately
that's usually easy.

> So-called "software patents" are in fact patents on mathematical algorithms.

Probably. Still, the EPC mentions "computer programs as such"
and "mathematical methods as such" as two separate categories.
See items 2(a) and 2(c) of article 52 EPC. So I guess the drafters
of the EPC thought it worth mentioning both. Whether this means
they consider maths and software equivalent I don't know; but
both are excluded to the same extent, so I guess it doesn't

I agree with you that the distinction may seem artificial. But it
does seem logical to me to say "you can't patent A XOR B but you can
patent a computer program that does that." Then the formula remains
public domain; you just can't make, use or sell a program that
implements the formula. Were the formula patented, then you couldn't
even publish a textbook.

It's the same in my eyes as saying "you can't patent a discovery
but you can patent a machine that applies this discovery in

> It's actually an excellent idea to establish some case law by killing a 
> patent on the basis of that clause of the European Patent Convention.  

Try it. I'm able to kill business methods[1], but I would not
advise my client to oppose a European patent on the ground that
it's a computer program as such. Not even if I had Knuth as
expert witness.

[1] See the lowermost example on my webpage

> In reality every pro-software-patent ruling has been violating 
> centuries-old established law against the patenting of mathematics.  Judges 
> have had the wool pulled over their eyes; they didn't realize that they 
> were allowing the patenting of mathematical methods.  If a judge actually 
> understood that, the weight of stare decisis would be seen to be very much 
> against "software patents".

This is Europe. We don't do stare decisis. 
(England does, but they usually don't call themselves Europe :) )

European law is civil law, and it's the statute that determines
what is patentable. The European Patent Convention does not say
that "computer programs" are excluded, but makes a point of
saying that only "computer programs as such" are excluded. 
Since that's what the law says, that must mean something.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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