If the law is inconvenient, unelected bodies just change the rules?

From the FFII:

EPO seeks to validate software patents without the European Parliament

Benjamin Henrion, President of the association, says: "The current plan of the patent lobby is very clear: avoid a new software patent directive, validate the EPO practice via a central patent court, and guide the hand of the courts via a decision of the Enlarged Board of Appeal. They want to avoid the intervention of the European Parliament in substantive patent law."

In other words, seeing as the elected representatives have blocked a change in the law, the unelected quango will simply seek a change in the rules to make it unnecessary to change the law and therefore avoid asking the elected representatives at all.

This is crazy, dangerous and downright sinister.

"Considering that the EPO is an institution acting as judge and party, where the attributions and procedures have to be revised. [...] Demand the revision of rules of function of the EPO in order to guarantee that this institution can publicly justify the accountability in the exercise of its functions [...]."

Judge, jury and executioner more like.

Interested parties have up to the last day of April to send their comments to the Enlarged Board of Appeal.

Information for third parties wishing to file written statements

Communication from the Enlarged Board of Appeal concerning case G 3/08

(my comments added in bold)

In accordance with Article 112(1)(b) EPC, the President of the European Patent Office has referred the following points of law concerning the limits of patentability of programs for computers within the meaning of Article 52(2)(c) and (3) EPC to the Enlarged Board of Appeal. The case is pending under ref. No. G 3/08.

The questions referred are:

1. Can a computer program only be excluded as a computer program as such if it is explicity claimed as a computer program?

No, any computer program is excluded no matter how it is claimed because a computer program is not patentable. The patent claim must contain material other than a computer program and the computer program itself cannot be claimed as part of any patent claim nor can any computer program ever be deemed to have infringed any patent claim even if that claim was previously based entirely in hardware.

2.(a) Can a claim in the area of computer programs avoid exclusion under Art. 52(2)(c) and (3) merely by explicity mentioning the use of a computer or a computer-readable data storage medium?

No patent claim can be made against any method expressed as a computer program. It is the software that matters, not the paraphernalia of computers. Therefore, whether a computer or computer-readable data storage media are mentioned, any software is automatically excluded from patentability. If the claim makes no sense without that software, then the claim is excluded.

(b) If question 2(a) is answered in the negative, is a further technical effect necessary to avoid exclusion, said effect going beyond those effects inherent in the use of a computer or data storage medium to respectively execute or store a computer program?

Any effect is excluded from patentability if that effect is or can be executed by software. If the effect becomes possible via software at some point in the future, the software cannot be deemed to have infringed the patent claim because software is not patentable.

3.(a) Must a claimed feature cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim?

Effects on the "real world" are irrelevant - if the effect is or can be performed in software, the effect is excluded and any software implementing that effect cannot be deemed to have infringed the patent claim. The real world still includes the electrons that implement the effect of software but software is not patentable.

(b) If question 3(a) is answered in the positive, is it sufficient that the physical entity be an unspecified computer?

No, the effect is not the issue, the method is the issue.

(c) If question 3(a) is answered in the negative, can features contribute to the technical character of the claim if the only effects to which they contribute are independent of any particular hardware that may be used?

Portability infers software and software is not patentable. A claim must be excluded if it is wholly or partially implemented as software or can be wholly implemented as software and no software implementation can be deemed to have infringed the patent claim either in whole or in part now or in the future because software is not patentable.

4.(a) Does the activity of programming a computer necessarily involve technical considerations?

No. Programming is a form of speech, it uses languages and different languages have different requirements for technical expertise. Some languages require little or no technical expertise to generate an effect within a computer by means of software.

(b) If question 4(a) is answered in the positive, do all features resulting from programming thus contribute to the technical character of a claim?

No software programming can have any technical character for patentability because software is not patentable.

(c) If question 4(a) is answered in the negative, can features resulting from programming contribute to the technical character of a claim only when they contribute to a further technical effect when the program is executed?

No, if the features result from programming then the software to effect those features is not patentable and the feature itself is not patentable. No effect of a computer program can be wholly or partially patentable.

The text of the referral in the English language is available under Referrals pending before the Enlarged Board of Appeal.

The Enlarged Board of Appeal considering the referral will be composed as follows:

* P. Messerli (CH) (Chairman)
* M. Vogel (DE)
* D. Rees (GB)
* M. Dorn (DK)
* K. Härmand (EE)
* A. Klein (FR)
* J.-P. Seitz (FR)

It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff). To ensure that any such statements can be given due consideration they should be filed together with any new cited documents by the end of April 2009 at the Registry of the Enlarged Board of Appeal, quoting case number G 3/08. An additional filing of the statement and documents in electronic form would be appreciated (Dg3registry_eba@epo.org ).

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Feel free to add your own answers to the questions as comments.