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Swedish Courts Oppose Unlimited Patentability

From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Date: Fri, 20 Dec 2002 06:59:36 -0500
Message-ID: <3E030628.FE925C03@RealMeasures.dyndns.org>
To: C-FIT_Community@realmeasures.dyndns.org, C-FIT_Release_Community@realmeasures.dyndns.org, fairuse-discuss@nyfairuse.org, DMCA_Discuss@lists.microshaft.org, DMCA-Activists@gnu.org
Cc: www-patentpolicy-comment@w3.org, djweitzner@w3.org


(Forwarded from Patents list)

-------- Original Message --------
Date: Fri, 20 Dec 2002 12:21:51 +0100
From: Erik Josefsson <erikjosefsson@telia.com>
To: patents@aful.org

On Thu, 19 Dec 2002 23:16:00 +0100 (CET)
PILCH Hartmut <phm@a2e.de> wrote:

> The world alliance of patent lawyer associations
> 
>   http://www.ficpi.org/ficpi/newsletters/51/PosPaperSPLT_1.html
> 
> demands that Art 27 TRIPs may not and "was never meant to" be interpreted
> in a "restrictive" way, i.e. in a way that treats the concepts
> "invention", "technical", "industrial" etc as limitations on what can be
> patented.  The new Substantive Patent Law Treaty, which is being
> prepared by WIPO, should, according to FICPI (and according to the
> US delegation at WIPO), impose worldwide patentabilty of anything
> useful.  According to FICPI there is "no reason" to limit patentability,
> and in particular the ever-growing importance of the service sector should
> be taken account of by making patents available for this sector.

Are they outdated or desperate?

In the light of the recent Swedish verdict that rejected a
business method patent:

> http://l2.espacenet.com/espacenet/viewer?PN=WO0028449&CY=ep&LG=en&DB=EPD 

it is clear that Swedish courts are not interested in
unlimited patentability. The TRIPS argument was put forward,
but in this case rejected by the Swedish Court of Patent
Appeals:

"As pointed out by the plaintiff, Sweden is bound to follow
the rules in the TRIPS agreement since it joined the WTO in
1995. What's relevant to this case is that article 27 (1)
says that the possibility to get a patent should be
available for every invention in any technical field. This
decision has not made any change in § 1 PL [Swedish Patent
Law] necessary.  Neither article 27 (1) nor any other part
of the agreement gives a legal definition of the concept
"invention." There is no explanation of what is supposed to
be considered a "technical" field, in this regard and for
background on the article see Joseph Straus in GRUR Int.
1996 p. 179:  "Bedeutung des TRIPS für das Patentrecht",
part V b) iii, items 35 to 37, in which the relationship to
article 52 in the EPC is also discussed."

The quote is from an unauthorized translation of the verdict
(case number 01-157), see: http://susning.nu/01-157

For those unfamiliar with Swedish Patent Law it could pehaps
be helpful to quote the opening of the verdict:

"When trying the case, the first consideration is the
question of how the system and the method according to the
application is relating to the judical invention concept in
1 § first paragraph Swedish Patent Law (PL) with the
specification expressed in paragraph two item 3, according
to which an invention is never considered such as solely
consists of "a plan, a rule or method for intellectual
activity, gaming or busisness or a computer program".

To put it simple. A computer program as such is not an
invention. And even if it is not written out explicitly in
the verdict, the verdict is in alignment with the notion
that electronic data processing is not a field of
technology.

As opposed to the EPO koan of T 1173/97: "This may result in
the identification of those programs for computers which, as
a result of not being considered programs for computers as
such, are open to patentability."

I am not sure of the exact meaning of the english word
"screw" - but the swedish word "skruvat" feels apropriate
for such legalese.

For more on the the swedish invention concept as such see:
http://swpat.ffii.org/stidi/epc52/udgor/

//Erik Josefsson
Received on Friday, 20 December 2002 10:03:04 GMT

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