On Groklaw, there is a long letter by Sharon Bowles, of Bowles Horton, an EU patent and trademark legal firm. http://www.groklaw.net/article.php?story=20050314114813919 Ms. Bowles is senior advisor to Chris Huhne MEP.
She claims that a lot of the reporting of the EU swpat directive has been misleading. In particular: "The problem in recent years faced by Patent Offices and courts has been how to interpret 'computer programs'. This has become highly relevant, not just because of the increasing use of computer programs but rather more because of the nature of things that are done nowadays by computer programs. "In particular there are now substantial areas of technology where software has replaced conventional analog or digital circuits. Examples range from control of mechanical systems such as an internal combustion engine to control of packet switching in network routers, which underlies communications technology. "To be effective a patent must cover the concept as well as the detail of the invention, so although a computer program listing might be given as an example of how to perform part or all of an invention, the patent claims (the bit that defines, legally, what is covered) would not be so specific and usually relate to the method steps that are implemented in the software. (This is why relying on copyright protection in the listing is not sufficient.) So the question arose of whether the exclusion of 'computer programs' covered only listings or extended to claims to a method that is entirely put into operation through a program, i.e. is 'software or computer- implemented'. "The European Patent Office adopted the practice that a 'computer-implemented invention' was more than just a 'computer program' and was patentable when there was also a technical effect because this fulfilled the fundamental requirement that a patent be 'capable of industrial application'. This interpretation was also followed by courts in the UK and Germany and is what we have had in Europe for some years. There has been pressure from the US for wider coverage as they have. This has been resisted (not least by parts of the profession and patent offices in Europe) but does seem to have given rise to lasting fear." So, she claims, the so-called "Common Position" directive will only write into European law what is already the legal standard, and somehow (it is not clear how) this "firming up" of the law will protect us against further international pressure to go down the US route of unrestricted software patents. Any comments? -- Robin
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