[Fsfe-uk] MEP's advisor argues Common Position swpat directive is a good compromise

[Robin Green]

On Groklaw, there is a long letter by Sharon Bowles, of Bowles Horton, an EU 
patent and trademark legal firm.
 http://www.groklaw.net/article.php?story=20050314114813919
Ms. Bowles is senior advisor to Chris Huhne MEP.

She claims that a lot of the reporting of the EU swpat directive has been 
misleading.
In particular:


 "The problem in recent years faced by Patent Offices and courts has been how 
to interpret 'computer programs'. This has become 
highly relevant, not just because of the increasing use of computer programs 
but rather more because of the nature of things that 
are done nowadays by computer programs.

 "In particular there are now substantial areas of technology where software 
has replaced conventional analog or digital circuits. 
Examples range from control of mechanical systems such as an internal 
combustion engine to control of packet switching in network 
routers, which underlies communications technology.

 "To be effective a patent must cover the concept as well as the detail of the 
invention, so although a computer program listing 
might be given as an example of how to perform part or all of an invention, the 
patent claims (the bit that defines, legally, what 
is covered) would not be so specific and usually relate to the method steps 
that are implemented in the software. (This is why 
relying on copyright protection in the listing is not sufficient.) So the 
question arose of whether the exclusion of 'computer 
programs' covered only listings or extended to claims to a method that is 
entirely put into operation through a program, i.e. is 
'software or computer- implemented'.

 "The European Patent Office adopted the practice that a 'computer-implemented 
invention' was more than just a 'computer program' 
and was patentable when there was also a technical effect because this 
fulfilled the fundamental requirement that a patent be 'capable 
of industrial application'. This interpretation was also followed by courts in 
the UK and Germany and is what we have had in Europe 
for some years. There has been pressure from the US for wider coverage as they 
have. This has been resisted (not least by parts of 
the profession and patent offices in Europe) but does seem to have given rise 
to lasting fear."


So, she claims, the so-called "Common Position" directive will only write into 
European law what is already
the legal standard, and somehow (it is not clear how) this "firming up" of the 
law will protect us against
further international pressure to go down the US route of unrestricted software 
patents.

Any comments?
-- 
Robin

pgpVJYb5TOzeb.pgp
Description: PGP signature