[Fsfe-france] Re: [Patents] Reponse du ministre de l'industrie par rapport aux brevets logiciels

[James Heald]

Denis,

Good response!

The glaring hole in the Minister's position is of course the lack of 
definition of what is technical.

It's interesting that he singles out image processing, signal processing 
and process control.  This is just the tip of the iceberg, though. 
Ministers across Europe appear to have no conception of just how much 
the EPO has pushed the idea of "technical" to cover.


One important 'line in the sand' is whether claimed methods on the 
processing of generic data can ever be technical, ie data not restricted 
to a particular applicatation by the claims.

Past UK case law maintains that methods which merely address generic 
data relate to "computer programs as such", and therefore not 
patentable; thus the current Patent Office manual states:

    "1.26.4 The reference in Merrill Lynch to Vicom involving an 
increase in speed (see 1.26.2) does not mean that an increase in speed 
of itself is enough. This point was considered in Options Clearing Corpn 
Inc's Application (unreported) when the hearing officer concluded that 
Vicom was allowable because it produced an advance, namely an increase 
in speed, in a technical field, namely the technical field of image
enhancement, and not simply because of the advance itself".

But the EPO's notion of technical (at least since the Sohei decision) 
goes far beyond this, holding that any data processing has "technical 
character", and so that any new technique of practical usefulness can be 
a "technical contribution".

This destroys any idea that the word technical is going to limit 
software patentability.


But you nailed all this very well in your reply.