Alain Pompidou is visiting the European Parliament ITRE comitee on wed 16 march 2005

Open questions to Mr Pompidou regarding software patents:

• Is ABS patentable under the vote of Europarl 2003? Y/N/ABS + arguments
• Can you explain the difference between "software is not patentable" and "software is not patentable as such"?
• Can you explain the difference between "software is not patentable as such" and "ideas of software are patentable"?
• In November 2004, during a hearing conducted by the Polish Government, all representatives of the Polish Patent Office, Microsoft, HP, Sun and representatives of the industry confirmed that the 18th May text allows patents on pure software. Do you agree with this conclusion?
• Most software is published in binaries and are copyrighted. Which technique does the EPO uses to get copies of those copyrighted software, and how do you look into binaries? Or maybe you look into the source code to find prior art? Can you explain in detail how do you do to find prior art in source code?
• Forbidding publication of software, either as source code or as binary, is violating the freedom of speech of software authors. Do you think it can conflict with the constitution of some countries members of the EPC? Y/N/ABS + arguments

This is a set of questions that build on each other to show clearly that this directive is only about software patenting and has nothing to do with ABS. They also give Mr. Pompidou a good chance to contradict patent office documents when he tries to avoid that facts.

First we try to set up the direkt link between the directive text and the EPO decisions:

1. The proposal of the directive mentions that the text is based on the EPO decision T1173/97. Do you confirm the relation of the directive text of commission and council to this decision?

• T1173/97 is discussed in the commission proposal (page 6-7) as "The current legal situation regarding art 52(1) and 52(2) of the EPC. The actual text makes use of two principles of T1173/97: o The "further technical effect" construction to implement the patentability of computer program products. o The possibility of claims on computer programs on every medium.

2. T1173/97 introduces the concept of the "technical character" for computer program products. It is based on, so called, "further effects that derive from the execution of the program". A computer program that does not have such "further effects" has no "technical character" and is therefor not patentable. Do you confirm that this is the same construction as used in the exclusions from patentability in article 4 of the council text? If not, how do they differ? How will the differences affect the patent examining?

• It is exactly the same in slightly different wording: T1173/97, art. 6.1: ... it is assumed that programs for computers cannot be considered as having a technical character for the very reason that they are programs for computers. T1173/97, art. 6.4 It is thus necessary to look elsewhere for technical character in the above sense: It could be found in the further effects deriving from the execution (by the hardware) of the instructions given by the computer program. Council text: A computer-implemented invention shall not be regarded as making a technical contribution merely because it involves the use of a computer, network or other programmable apparatus. Accordingly, inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable.

  T1173/97: http://legal.european-patent-office.org/dg3/biblio/t971173ep1.htm

Now - when we have the connection between the council text and the EPO decision, we dig deeper into the details of T1173/97 and that it is a de-facto deletion of 52.2(c)

3. Can you tell us how the "further technical effects" is used in the examining of "computer implemented inventions"?

• Another trap - because the whole concept was never intended for use in examining, as we see below.

4. In a letter to the japanese patent office the EPO explains in 2000 that the concept of the "further technical effect" is not to be used in patent examination. Can you explain to us the reason for the use of this concept in T1173/97 and the directive text?

• Next trap: The letter states clearly that the reason is only to introduce a new distinction between "software as such" and "software with technical character" as a workaround for EPC 52.2(c) until its deletion.

  The EPO Letter: Pages 4-6 http://www.jpo.go.jp/torikumi_e/kokusai_e/tws/appendix6.pdf

5. In the letter to the japanese patent office the EPO explains that the reason for the concept of the "further technical effect" is to introduce a distinction between "software as such" and "software with technical character". Can you explain to us, how this distinction releates to EPC 52.2(c)?

• EPC 52.2 says that "software as such" is not patentable. To patent software a distinction is needed. According to T1173/97 "software as such" is software that has no more technical effect than those common to all computer programs. The letter to the japanese patent office makes clear (page 6) that implementing a business method on a computer is a technical problem, and therfor not excluded from patentability after T1173/97.

6. What was the technical problem that was solved in the granted amazon patent?

• The address of a gift receiver is unknown to the computer system. The invention: Writing a message to the gift receiver to type his address into the database solves this technical problem. See pg. 5-6 for a detailed description of the "further technical effect" in the amazon patent where amazons patent lawyer

  defends correctly against the FFII opposition on the patent: http://www.ffii.se/erik/misc/AmazonRejectsFFIIOpposition.pdf

7. Which clause of the council text prevents from patents like those amazon patent? Can you explain how this prevention influences the examining process?

• Noone, but it will be interesting to see the answer.

9. In decision T0115/85, 9 years before T1173/97, the EPO states that "a computer program that is used to solve a problem in a field of (patentable) technology, is patentable in the context of the special solution.". Do you confirm that the concept of the "further technical effect", which was introduced in T1173/97, is not needed for the patenting of such innovations? If not, can you explain why this concept is needed for such products, like brakes, and give references to EPO decisions?

• He has to confirm that, the decision is quite straight: "Even if the basic idea underlying an invention may be considered to reside in a computer program a claim directed to its use in the solution of a technical problem cannot be regarded as seeking protection for the program as such" If software is used in an invention to solve a problem like braking a car, then this is patentable subject matter without the need of the distinction itroduced later.

  T0015/85 http://legal.european-patent-office.org/dg3/biblio/t850115ep1.htm

10. Which amandments of the european parlament prevent the patenting of inventions like computer controlled breaks and can you explain how these amandments influence the examining process?

• That is just to make the point more clear. After 9. it is obvious that neither the directive, nor the amandments of the european parlament have anything to do with brakes.

Mr. Pompidou should be weakened after such questions. Now it gets really dirty to finish the case and close the curtain. The best Mr. Pompidou can do is to avoid these questions by telling that he knows no details about the Kyoto action plan and the project 24.2. Which is strange because these are the reason why he tries to get this council text trough and why he is standing in the parliament.

11. What is the "Kyoto action plan" of 1997?

• The "Kyoto action plan" is a project of the three main patent offices EPO, JPO and USPTO to harmonize patent examination and to build up a common infrastructure for patent examination.

  Press release Kyoto action plan: http://www.uspto.gov/web/tws/gen-3-1.htm

12. What is the trilateral project 24.2 and how is it releated to the Kyoto action plan?

• Project 24.2 was the detailed study on the difference of the patentability of "computer software related inventions" between JPO, EPO and USPTO. It was finished 1997. To harmonize the patent examination, as announced in the Kyoto action plan, studies were made in the different fields of patentable subject matter. 24.2 was the study releated to the software industry.

  Text of the report: http://www.jpo.go.jp/saikine/tws/utp242_m.htm

13. What was the conlusion of 24.2 releating to statutory subject matter?

• JPO and USPTO are very equal, EPO differs very much because EPC 52.2(c) prevents computer program products to be patented.

14. Are the example patents of project 24.2 now, after T1173/97 introduced a distinction of "software as such" and "software with technical character", patentable subject matter?

• Those accepted from JPO and USPTO would, when examined after the rules of T1173/97, be patentable subject matter.

15. How is T1173/97 and the council text releated to the "Kyoto action plan"?

• It should be obvious now, that T1173/97 overcomes the harmonization obstacles that were identifyed in the study "24.2" by the three patent offices by makeing EPC 52.2(c) irrelevant in practice, as it is written in the letter of the EPO to the JPO to clarify. The directive implements this on the EU-level and prejudices the deletioin of EPC 52.2(c).