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Re: libdts patent issue?

Michael K. Edwards wrote:
> On 7/20/05, Arnoud Engelfriet <galactus@stack.nl> wrote:
> > The law says so: articles 52(2) and (3) EPC.
> > http://www.european-patent-office.org/legal/epc/e/ar52.html
> Understood that that's the statutory basis for the subject matter test
> (parallel to 35 USC 101), insofar as the EPC constitutes statute
> rather than treaty.

The EPC is a treaty. All EPC member states have changed their law
to be the same as the treaty. Furthermore European patents may
only be declared invalid under the conditions set by the EPC. So
it's not law, but as close as you can get.

> > The EPO's Board of Appeals has issued several decisions that
> > discuss this article:
> > http://legal.european-patent-office.org/dg3/pdf/t971173ex1.pdf
> > (see page 12 of the PDF, sections 4 & 5)
> I've made a quick pass through this opinion (In re IBM) and find it
> unsurprising.  Methinks the EPO's law clerks need to take some lessons
> in concise and vivacious writing from some of ours.  

I've heard people say "this is what you get when you let Germans
write common law decisions."

> I also observe
> that the case law established by previous Boards of Appeal is very
> much the primary source of citations, and if your courts aren't bound
> by stare decisis except in the same sort of extraordinary
> circumstances that ours are, I can't tell the difference.  

This is the EPO's internal board of appeals. National courts have
no obligation whatsoever to follow the BoA. And even the boards
themselves can deviate from earlier decisions, although they have
to explain why. And the matter can then be referred to the Enlarged
Board (sort of like a rehearing en banc).

And yes, they heavily rely on their earlier caselaw.

I agree with you that the approach is similar in may aspects to
the US system. Partially that's because patent law is heavily
harmonized around the world. But still there are differences,
especially when it comes to patentable subject matter.

The example I gave earlier is 
which is European patent application 
that was rejected for being a business method as such. And
if you read the decision, you'll see that there was no way they
were going to allow this application.

The corresponding US patent US4750121 was allowed without any such
problem. Claim 1 does not even recite "a computer", only several
"means" that perform certain steps to a master trust.

So in my view, the fact that this kind of difference occurs
shows that in the US a lot more is patentable than in Europe.


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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