back to article EPO to give definitive ruling on software patents

The European Patent Office (EPO) has asked its ultimate legal authority to look at the European Patent Convention (EPC) and issue advice on the patentability of software. The EPO said that such advice was necessary to ensure the uniform application of the EPC. EPO President Alison Brimelow has referred the contentious issue to …

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  1. Anonymous Coward
    Anonymous Coward

    EPO isn't the ultimate anything

    "The European Patent Office (EPO) has asked its ultimate legal authority to look at the European Patent Convention (EPC) and issue advice on the patentability of software. The EPO said that such advice was necessary to ensure the uniform application of the EPC."

    It's just an organisation set up under a treaty to issue patents. That treaty forbade software for computers, but they wanted to patent it anyway so played games with the term 'as such' to issue patents for software. This was wrong.

    They pretended the trade treaty required that they misinterpret the patent treaty. This was wrong.

    i.e. The Nations are in charge and EPO is required to abide by the treaty they wrote. If the EPO wants to depart from that it needs the Nations to change the treaty.

    The European Patent Court likewise is just a body under the EPO with pretensions of legal status that it doesn't really have. It is not the ultimate anything, it is under the EPO and as such has even less real power.

    The National Courts rule, not the EPO. So the EPO's opinion, which has been ruled faulty repeatedly in many courts, has no more weight than it did the last time they wanted to pretend 'As such' meant software could be patented.

    Use trade secrets if you want to protect your software, they work, they're worldwide and they are instantaneously granted.

    The only reason to use patents when trade secrets are better is if you are a major company with declining share, and worried about new entrants to your market with their Android and Jesus products.

    But protectionism is ultimately self defeating Nokia.

  2. aldude
    Thumb Up

    Good idea

    Finally - the EPO approach has been changing in various ways over the years, so this should hopefully provide a definitive answer to what the EPO's opinion is on the issue.

    Then the "free software" movement can get down to ripping it apart. Instead of having to fit their own point of view to various different scenarios.

    Oh, and trade secrets usually don't work for protecting software - software is easy enough to reverse engineer using legions of pasty programming thralls, and so the only way to keep it a "trade secret" is to not release it in the first place. Not good business practice!

  3. Gobhicks
    Stop

    Here we go round the mulberry bush

    It's always nice to see informed debate on complicated subjects. It's a shame it never seems to happen.

    The Enlarged Boards of Appeal of the EPO *are* the ultimate legal authority - of the EPO. There is no existing route to appeal a decision of the EPO Boards of Appeal beyond the EPO.

    There is no such thing as the European Patent Court.

    The effect of the exclusion from patentability (in Europe) of "computer programs as such" has been the subject of a long-evolving legal debate. Given that patents exist and aren't likely to go away any time soon, defining the line between patentable inventions that involve the use of computers and non-patentable computer programs is an important socio-economic issue. If the "antis" want to have any impact on the debate, they need to be a whole lot better informed and and whole lot less prone to basing their arguments on meaningless propaganda.

    Whether the present referral to the Enlarged Boards of Appeal ultimately sheds any light on the whole sorry mess is another matter altogether.

  4. Anonymous Coward
    Linux

    simplesimon

    If one can only patent the method of producing a result, rather than the result itself, what is to stop me coding a program which, by a series of mathematical operations (which aren't patentable in any country), has the side-effect of recreating the result of a patented software algorithm?

    i.e,

    1) Take patented software program (or duplication of)

    2) Produce a chain of mathematical operations that duplicates its behaviour (by accident)

    3) Try and seek a patent on your series of equations

    4) It won't be granted, but why? What is the difference between the two?

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