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[Fsfe-france] Un juge UK s'en prends a l'EPO sur les brevets logiciels

From: Laurent GUERBY
Subject: [Fsfe-france] Un juge UK s'en prends a l'EPO sur les brevets logiciels
Date: Sun, 31 Jul 2005 23:56:25 +0200

Via la FFII : http://wiki.ffii.org/Cpfh0507En

D'apres ce que dit le juge il peut y avoir appel (je ne connais pas le
circuit UK), et vu la durete et fermete du jugement et de ces
commentaires envers le traitement des brevets logiciels par l'EPO, je
pense qu'il y en aura un.

Je vous conseille de lire le jugement, il est assez accessible et il y a
toute une section sur l'interpretation du fameux Article 52c.


# I am satisfied that neither of the two alleged inventions are
patentable. And even if the tests that are currently used by our Patent
Office had been applied the result would be the same. So also if the
tests currently used by the European Patent Office had been applied.

# Despite the prohibition on granting patents for computer programs as
such, it is said that the EPO has granted more than 40,000 of them. It
is said that not a few of these pertain to business methods as well.
>From the point of view of the applicants in our case, if there is any
chance of getting such a patent it may be said to be a rational business
choice to try it. If not, their competitors might. I have pointed out
that patents that are wrongly granted can be very expensive to
challenge, and perhaps beyond the means or inclination of small and
medium enterprises. An accumulation of patents of that sort (sometimes
known as a "patent thicket") may be a serious barrier to entry.

# The only safeguard against that wrong – and it is a wrong – is the
vigilance of the Patent Office. When I was a Patent Office examiner
(though that was many years ago) we knew that we sometimes granted
patents that we shouldn't, but did it anyway because we thought the
Patents Appeal Tribunal would not support us. I believe that when a
Patent Office examiner upholds the law he or she ought to be named and
praised. And even if the Patents Court may disagree with the objection
on appeal, it is a matter of praise all the same if the objection was

# I understand that the Examiner who objected to these applications was
Mr Roland Whaite. The Hearing Officer who, rightly in my judgment,
upheld the objection was Mr H Jones.

# In my judgment the objection was rightly taken, Mr Jones' decision was
correct, and the appeal must be dismissed. Submissions about costs and
the proposed form of order may be sent to my clerk by email.

# Although I have no doubt whatever about the result, the case does
raise issues of public importance because it affects the future practice
of the Patent Office. I would be inclined to say that either party may
have permission to appeal, even though it would be a second appeal. If
the Patent Office did wish to appeal, they would not be appealing the
actual result (for that is in their favour). They would be appealing the
reasoning of this judgment as affecting the public administration.
Compare Secretary of State for the Home Department, Ex Parte Salem, R v.
[1999] UKHL 8; [1999] 1 AC 450.

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