Arnoud Engelfriet wrote:
I don't know of any caselaw in any European country in the past ten
years that says "This European patent is invalid because it's a
computer program as such."
That's not the caselaw you're looking for.
The caselaw you're looking for is "This European patent is invalid because
it is a mathematical method."
"Mathematical methods" are explicitly unpatentable under the European Patent
Convention. (Unlike in the
US, where they were only unpatentable due to caselaw, which was overturned
by the Federal Circuit, which
didn't realize or admit that it was breaking stare decisis.)
So-called "software patents" are in fact patents on mathematical algorithms.
If necessary, I can get a near-infinite number of computer scientists and
mathematicians of the top caliber to testify that algorithms for computers
*are* mathematical methods. (Conversely, most mathematical methods can be
transformed losslessly into algorithms for computers.) The equivalence was
established at least
as early as Shannon. This is a matter of fact, not law.
If a judge thinks otherwise, it's probably because he or she hasn't been
given the expert testimony on the issue.
If there is case law to the contrary, it is due to misunderstanding of the
facts -- because this is an issue of fact, not law -- and any competent
judge would ignore it for that reason.
It's actually an excellent idea to establish some case law by killing a
patent on the basis of that clause of the European Patent Convention. The
key requirement, however, is to pull together a *lot* of *very* strong
expert testimony before the fact, because history has shown that judges are
quite easily swayed by false claims when they don't understand the field.
In reality every pro-software-patent ruling has been violating centuries-old
established law against the patenting of mathematics. Judges have had the
wool pulled over their eyes; they didn't realize that they were allowing the
patenting of mathematical methods. If a judge actually understood that, the
weight of stare decisis would be seen to be very much against "software
patents".
This is why I feel no compunction about saying that the European Patent
Convention disallows software patents: because it does. Now, it may be an
unenforced provision of the European Patent Convention, one which judges
have been (knowingly or unknowingly) ignoring due to a lack of understanding
of the facts. But it is clear and unmistakable.
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