Subject: fatal ambiguity in European Patent Convention

From: PILCH Hartmut <[email-masked]>
Date: Sat, 19 Aug 2000 16:41:04 +0200 (CEST)

Article 52 of the European Patent Convention limits the scope of objects
that can be patented in Europe. Unfortunately, ambiguous relative clauses
in the text have helped the European Patent Office in extending the scope
and depleting the text of meaning.

The text reads:

<<
Art 52 - Patentable Inventions

European patents shall be granted for any inventions which are susceptible
of industrial application, which are new and which involve an inventive
step.

(2) The following in particular shall not be regarded as inventions within
the meaning of paragraph 1:

...
[ computer programs ] 

According to the more restrictive interpretation which I favor, this is to
be interpreted as:

The word group in (1)

"inventions which are ... step"

defines a new concept, that which the title calls "patentable inventions"
and which the word group in (2)

"inventions within the meaning of (1)"

also refers to.

An "invention" in the context of patent law thus is one of the "inventions
which are ..".

Another interpretation would say that (1) does not define any concept of
"invention" and that only (2) defines what an "invention" is, but does so
not by supplying an abstract definition but only by supplying a list of
exceptions, from which the courts must infer an abstract definition. Which
they did: they claimed that the unerlying criterion was "technicity", and
then they created a caselaw which softened the meaning of "technicity" so
that gradually also computer programs were admitted.

If the text had been logically clear enough to enforce the first
interpretation (which I believe to be historically true), the technicity
reasoning could not have crept in, but the courts would have to be forced
to look for the underlying criteria within the concepts of (1), which
contain the requirement for "susceptible of industrial application", and
they would have had to explain "industrial application" in a way that is
consistent with the list of exceptions.

How would the two versions have read in Lojban?
Is it a simple poi/noi difference?

-phm