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Engelsk dommer afviser swpat ansøgning.



http://www.ipjur.com/2005/08/uk-interesting-case-law-on.php3
http://www.bailii.org/ew/cases/EWHC/Patents/2005/1589.html

A remarkable Judgement concerning the patentability of computer-implemented
inventions has been published in the UK. In particular, Mr. Peter Prescott
QC, a former patent Examiner, now sitting as a Deputy Judge of the Royal
Courts of Justice in London, had to deal with two UK patent applications
GB0226984.3 and GB0419317.3 claiming inventions on the borderline between
patentable and non-patentable subject matter. Mr. Prescott dismissed both
appeals and, hence, both of the applications have been rejected.


Kort sagt, dommeren har skabt jurisprudens for at have en restriktiv
praksis i England relativ til EPO. Dette er særdeles vigtigt, og
dommen har mange interessante punkter, f.eks. kritiserer dommeren
kommissionens swpat direktiv.


klip:

The reason why computer programs, as such, are not allowed to be patented is
quite different. Although it is hotly disputed now by some special interest
groups, the truth is, or ought to be, well known. It is because at the time
the EPC was under consideration it was felt in the computer industry that
such patents were not really needed[14], were too cumbersome (it was felt
that searching the prior art would be a big problem[15]), and would do more
harm than good[16]. I shall not go into details here but it is worth noting
that the software industry in America developed at an astonishing pace when
no patent protection was available[17]. Copyright law protects computer
programs against copying. A patent on a computer program would stop others
from using it even though there had been no copying at all. So there would
have to be infringement searches. Furthermore you cannot have a sensible
patent system unless there exists a proper body of prior art that can be
searched. Not only are most computer programs supplied in binary form ?
unintelligible to humans ? but most of the time it is actually illegal to
convert them into human-readable form[18]. A patent system where it is
illegal to search most of the prior art is something of an absurdity.

:

On matters of patent law the role of the EPO is persuasive, not
prescriptive[26]. The EPO is not equipped with a staff of expert economists
who are competent to decide if the patenting of business methods, or
computer programs, would be good for our country and even if it was it
would still be for our Parliament to decide. So, although we should pay
careful attention to EPO decisions, and the decisions of other Convention
courts, we are not bound to follow them blindly.

:

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.

-- 
  Mvh. Carsten Svaneborg
http://gauss.ffii.org


 
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