Chartered Institute for Patent Expansion strikes back

Richard Stallman wrote a piece in the Guardian on the risks of software patents under the proposed EU/unitary-patent. In a off-planet reply today, the Tim Roberts of the Chartered Institute of Patent Attorneys tells us that our fears are unfounded:

"• Despite Stallman's comments to the contrary, UK and European statute law regarding the patentability of computer-implemented inventions has not changed in substance for many years."

Mr Roberts must know that European Patent Office coined "computer-implemented inventions" outside statute law as to allow for software patents as seen from so many granted patents, while the European Patent Convention clearly states that software is not patentable. So the statement is nonsense. Things have changed quite tremendously - and thats just what this is about!

"• Stallman suggests that "appeals against the [European Patent Office's] decisions would be decided based on the EPO's own rules", and is concerned how the EPO would act "with external limits (such as national courts) removed". However, the EPO is bound by legislation agreed by its member states, has independent boards of appeal, and the current proposals involve creating a separate community patent court that will provide "external limits" in place of national courts." 


So why is it so hard to understand the point here? A specialized patent court is not the best "external limits" unless you want those limits to go very far. The US Supreme court have had to hold the US version, CAFC, of the proposed EU-patents court back several times. The lesson should have been learned.

/jonas

Abstract matters, rules Judge.

There are so many nice cites comming from this recent Federal Circuit appeals court (CAFC) ruling that its best that you start reading the full text. Its inlined here on techdirt: "Court Ruling Opens The Door To Rejecting Many Software Patents As Being Mere 'Mental Processes'"

The court rules that a patent, on logging IP numbers related to card payments, is abstract matters and not patentable. And that abstract ideas, something that can be done using pen and paper, can't qualify as patentable just because it can be stored as computer instructions. 

This seems to have an aful lot of ties with the European patent office rulings wrt "record on a carrier" and "Pen and paper" in the IBM,1&2 and Hitachi cases, execpt that this judge understod things correct. Could this possibly resolve the current mess we have? I hope its a good start. This is just after the Supreme courts rejection of the Bilski patent. 

I certainly hope that this a sharp turn for the sort of post modern rulings that have made information and math patententable.  Abstract matters.

/jonas

Would a new unitary patent court put the Eurpean patent office in order?

FFII.se got a request for comments on the new proposal for a European, unitary, patent court, in short:

"The Unified Patent Court is a court common to the Contracting Member States of exclusive competence on their territories for European patents with unitary effect and European patents. The Contracting Member States regard the Unified Patent Court to be part of the judicial system of the European Union and is subject to the same obligations as a national court with regards to the respect of Union law."

Sounds good. Some questions though:

Would the ECJ have competence over European Patent Convention and patent granting? 

Would EU-regulations allow complaints on patentable matters to go before the ECJ? 

What would happen with national patent courts? In most patent cases, invalidation is an issue for sure, so unitary patent trials would probably go to the new patent court almost instantly... 

The European Patent Office needs to have someone stop them from the terrible damage they are causing with software patents and bussiness method patents. 

Article 2

Definitions

(1) "Court" means the Unified Patent Court.

(2) "European Patent with unitary effect " means a European patent which benefits from unitary effect in the territories of the participating Member States by virtue of Regulation ### implementing enhanced cooperation in the area of the creation of unitary patent protection.

(3) "European Patent" means a patent granted under the provisions of the European Patent Convention designating one or more Contracting Member States to this Agreement without unitary effect.

(4) "Supplementary protection certificate" means a supplementary protection certificate granted under Regulation (EC) No 469/2009 ¹ or under Regulation (EC) No 1610/96².

(5) "European Patent Convention" means the Convention on the Grant of European Patents of 5 October 1973, as amended.

(6) "European Patent Office" means the organ carrying out the granting of patents as established by Article 4, paragraph 2(a), of the European Patent Convention and the registering of unitary effect in accordance with Article 12 (1) (b) of the Regulation ### implementing enhanced cooperation in the area of the creation of unitary patent protection.

(7) "Patent" means a European patent and a European patent with unitary effect.

(8) "Statute" means the Statute of the Court which is attached to this Agreement.

(9) "Rules of Procedure" means the Rules of Procedure of the Court.

(10) "Member State" means a Member State of the European Union.

(11) "Contracting Member State" means any Member State party to this Agreement.

Article 3

Scope of application

This Agreement shall apply to any:

(a) European patent with unitary effect;

(b) supplementary protection certificate issued for a patent;

1 Regulation (EC) No 469/2009 of 6 May 2009 concerning the supplementary protection certificate for medicinal products, OJ L 152, 16.6.2009, p.1.

2 Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary certificate for plant protection products, OJ L 198, 8.8.1996, p.30.