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"Something can be an invention without being patentable"

No, this is the same bug again.

I think we're going to have to agree on which dictionary we will use. The EPC makes "being an invention" one of the requirements for patentability, but not the only one. The light bulb, as originally invented by Edison, is an invention, but it is known and so cannot be patented today (although it was in the 1880s).

Inventions are patentable, and there are no inventions that are unpatentable.

So, you would say that the lightbulb isn't an invention, but rather that it was an invention, I suppose. Ok, I can understand that (it's the common use of the word), but please keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms.

Nevertheless, for the present discussion it does not matter, and the EPC does not consider computer programs as such to be inventions - in both senses of the word. :-)

You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.

True. That's why I was surprised when the EPO Board of Appeals (which btw includes several technically qualified people) came up with the "further technical effect", and made the distinction with "normal technical effects" that all computer programs exhibit. So it is not enough to say "This is a computer program", you have to demonstrate what this particular program does and why that particular effect is technical. I've given some examples in the context of business methods on my site.

You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.

I thought the MP3 encoding patents were held by Fraunhofer, but I could be wrong. My own area of expertise is digital rights management, not signal coding. And I don't think I want to comment in public on patents held by direct competitors of my company.

I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.

Well, you will have noticed by now that I work at the patent department of one of the largest electronics firms in Europe. So I am quite familiar with the state of the case law regarding software and business methods at the EPC. While I agree that the case law leaves much to be desired, I do believe that by now they have worked out a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus. Basically, it doesn't matter that the invention is embodied in software. If it were embodied in hardware, would the resulting effects then be technical? If so, it is patentable (assuming novelty and nonobviousness).

"So they simply moved it into the heading of the article corresponding to 52(2)."

No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong

I'm going to have to take your word for the translations of the EPC into Danish and Swedish. It would be interesting to see how these countries defend being in compliance with the EPC whilst ignoring this provision.

(can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.

"Beresford" refers to the book Patenting software under the EPC by Keith Beresford (ISBN: 0-752-006339). Oh, I see FFII has a review.

According to Beresford, they didn't even have an exclusion for software at all at first. It appeared first in 1971 as a point under discussion in the list of items like "mere discoveries" and "purely aesthetic creations". These "merely" and "purely" qualifications were finally moved to 52(3) when the EPC was adopted.

Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:

Yes. In fact, I've sat through several conferences that purport to teach you how to draft claims to get protection for software as such. It is not quite as simple as this article makes it appear. You can't just say "It's process control software and so it is an invention".

Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.

I am running my website as a private individual and so, by law, cannot infringe on any patents. Further, EP0895689 is not a patent. It's just a published applications, and those have no legal force.

Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?

I am defening the IP of a European software creator, although the software my employer makes is for a large part embedded in hardware. Our innovations were traditionally realized in hardware, and as such clearly patentable. Now that the industry trend is to move to more and more functionality in software, and we still desire to same level of protection for our innovations, you'll understand where I'm coming from. It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software. So a balance has to be struck between "all software is patentable" and "all software-related patents should be abolished."

As a final note, I am not speaking on behalf of my employer, in case that wasn't clear already. :-)

I found a EPC parser bug in "The First Mover Monopoly" [olswang.com] that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".

That's because that article, like me, is used to using these words as legal terms of art. Something can be an invention without being patentable (for example, if it's known). Other things cannot be inventions (for example, surgical methods). It's a matter of definition.

According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.

Absolutely correct, and I think this is still the current EPO practice. But they've split the evaluation up into two separate parts: is it "an invention" (ie not excluded by 52(2)) and second, is the invention obvious? Both are relevant questions when assessing patentability of something, but they're separate questions.

Reducing hard disk access time by adding a cache in RAM is an invention, according to the EPC. It's also extremely obvious, so you still won't get a patent, but that is a different question. Note that this invention nowhere mentions the use or presence of a computer program. It's a technical measure that most likely will be implemented in (OS) software, but that is not relevant to the evaluation.

You can insert "as such" anywhere you want, the meaning will not change.

I didn't insert that. The drafters of the EPC did. And we assume they did that for a reason, namely to lessen the restriction imposed by 52(2) in some fashion. In the first drafts, the "as such" wasn't there at all, but it was put in after objections from particularly the UK (Beresford, p. 19). So, why did they put it in and what does it mean?

And that is why the uninportant 52.3 is not present in Swedish and Danish law.

Actually, Denmark does have it in its patent law:

In particular the following subject-matter or activities as such shall not be regarded as inventions: ... programs for computers
(article 2)

So they simply moved it into the heading of the article corresponding to 52(2).

Swedish patent law doesn't use "as such", but rather says "merely":

The following shall never be regarded as an invention: that which is merely ... a computer program (article 1, second paragraph).

I'm not sure how similar "merely" and "as such" are, but they do seem to indicate the same thing: if what you have is more than just the fact that it's a computer program, then you may well have an invention.

I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.

Don't worry about getting me angry. I'm here exactly because I want to discuss these issues. It's also the reason I set up my website with patent information.

To finally answer your question (hopefully): the EPC, according to the latest case law, excludes only computer programs which do not produce a "further technical effect". That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is not an invention, because then you've claimed exactly a computer program as such.

If the application goes beyond such ordinary computer programs, then you do have an invention. For example, if you realize better control of a steering mechanism with a computer program, then that's a "further technical effect". Maybe the realization is an obvious use of computers, but that is another issue entirely.

I think the important part is: is this a desired interpretation of the EPC, or even, should the EPC have been drafted in this fashion?

In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).

The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.