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IPI 2000	Hart 1997	Olswang 2000	Beresford 2000	UKPO 2002	EWHC 2002

UKPO 2002-02-20: proposal to allow patents to programs as such

The UK PTO conducted its own consultation, which showed an overwhelming wish of software professionals to be free of software patents. But the UK PTO, speaking in the name of the UK government, reinterprets this as a legitimation to remove all limits on patentability by modifying Art 52 EPC at the Diplomatic Conference in June 2002. The proposal would render Art 52 tautological. Given that an "invention" in the meaning of Art 52 is the same as a "technical contribution to the state of the art", the UKPO proposal is tautological:

the following are not inventions, unless in their inventive step they make a technological contribution to the state of the art

just means

the following are not inventions unless in their inventive step they are inventions

or, after removing the misplaced "inventive step" requirement, which is dealt with in Art 56 EPC and not in Art 52 EPC, the UKPO's proposal boils down to:

The following are not inventions unless they are inventions

. In order to arrive at this recommendation, the UKPO conducted a consultation, it says. The purpose of this UKPO proposal was to help CEC Commissioner Bolkestein persuade the grudging European Commission to adopt their directive proposal in February 2002, a proposal written by UK patent office people together with BSA in Brussels. "If the European Commission doesn't adopt the proposal, we will sidestep the EU by pressing ahead in the European Patent Organisation", was the UKPO's (and thereby the UK government's) message.

UkpoSwpat0202Ref

"UK Position" on Software Patents: This text contained a proposal to rewrite Art 52(3) EPC, replacing "this exclusion applies only to the extent that the claims are directed to the excluded objects as such" with "the following are not inventions, unless in their inventive step they make a technological contribution to the state of the art". The UKPO has removed this article, but it is continuing to misinterpret Art 52 EPC in the same sense: "Software should not be patentable when there is no technological innovation, and technological innovations should not cease to be patentable merely because the innovation lies in software", thereby stating indirectly that software innovations are patentable inventions, whereas Art 52 EPC clearly says that mathematical methods, algorithms and programs for computers are not inventions in the sense of patent law. The UKPO bases this conclusion on a consultation conducted by the UKPO in 2000, in which most of the participants, especially nearly all the software professionals, said they did not want software to be covered by patents.
Art 52 EPC: Interpretation and Revision: The limits of what is patentable which were laid down in the European Patent Convention of 1973 have been eroded over the years. Influential patent courts have interpreted Art 52 in a way that renders it obscure and meaningless. Not all courts have followed this interpretation, and numerous law scholars have shown why it is not permissible. The EPO had accepted the inconsistencies in anticipation of an expected change of law. However this expectation was frustrated in 2000 by the governments and in 2003 by the European Parliament. The Parliament voted for a clarification which gives Art 52 back its meaning. Meanwhile, proponents from all sides have proposed to modify Art 52(3) EPC in one or the other way, of course while claiming that this merely serves to "clarify the status quo" or to implement a directive which serves this purpose, and, since the European Commission and the Council have not signalled support for the Parliament's approach, there is still no common understanding of which "status quo" we are talking about.
CEC & BSA 2002-02-20: proposal to make all useful ideas patentable: The European Commission (CEC) proposes to legalise the granting of patents on computer programs as such in Europe and ensure that there is no longer any legal foundation for refusing american-style software and business method patents in Europe. "But wait a minute, the CEC doesn't say that in its press release!" you may think. Quite right! To find out what they are really saying, you need to read the proposal itself. But be careful, it is written in an esoteric Newspeak from the European Patent Office (EPO), in which normal words often mean quite the opposite of what you would expect. Also you may get stuck in a long and confusing advocacy preface, which mixes EPO slang with belief statements about the importance of patents and proprietary software, implicitely suggesting some kind of connection between the two. This text disregards the opinions of virtually all respected software developpers and economists, citing as its only source of information about the software reality two unpublished studies from BSA & friends (alliance for copyright enforcement dominated by Microsoft and other large US companies) about the importance of proprietary software. These studies do not even deal with patents! The advocacy text and the proposal itself were apparently drafted on behalf of the CEC by an employee of BSA. Below we cite the complete proposal, adding proofs for BSA's role as well as an analysis of the content, based on a tabular comparison of the BSA and CEC versions with a debugged version based on the European Patent Convention (EPC) and related doctrines as found in the EPO examination guidelines of 1978 and the caselaw of the time. This EPC version help you to appreciate the clarity and wisdom of the patentability rules in the currently valid law, which the CEC's patent lawyer friends have worked hard to deform during the last few years.
The UK Patent Family and Software Patents: The United Kingdom's patent matters are run nearly exclusively by the UK Patent Office which has been a relentless promoter of software patentability in Europe since the 1970s.
Influencing the EU Council: Collect and Provide Information on who makes the policies of the Council on patents and information infrastructure issues and how to best contact these people.
UK Gov't Promoting Patent Extremism in the European Parliament: The UK Government's Foreign Office is circulating a "briefing to UK MEPs", in which it instructs british members of the European Parliament to back Arlene McCarthy's position and vote (1) against any attempt to define what is technical or otherwise limit what is patentable (2) against Article 6a which allows converters to be written when standards are patented (3) for JURI Art 5 which forbids publication of descriptions of patented inventions on the Net. The intervention of the government comes at a moment where McCarthy has shown nervous reactions in view of dwindling support in her party group. The government statement can be attributed to the UK Patent Office and its policy working group, consisting mainly of patent lawyers from large corporations. This group has been determining the software patent policy of the UK and largely also of the EU during recent years.