15 years of software patent practise at the European Patent Office The concept of technical character in 1986, today and in the future Seminar at Linuxtag of 2001 FFII.org, ENEF.org, VOV.de, EUROLINUX.org http://swpat.ffii.org/penmi/linuxtag-2001/ 2001-07-05 thu 10:00-18:00 Stuttgart, Messegel¨ande,Linuxtag CCA III Around 1986 European manuals and commentaries of patent law unanimously ex- plained (complained) that european patent law does not offer the software industry any chances of using patents to protect its investments. But what law scholars at the time deemed impermissible was put into practise by two decisions of the European Patent Office’s Technical Boards of Appeal in 1986. Since then, the EPO has granted more than 30000 patents for (un)technical teachings that had previously been regarded as unpatentable \rules of organisation and calculation" or \computer programs as such". Judges and law scholars have meanwhile proposed various delimitation concepts in or- der to place this caselaw development onto a meaningful systematic basis. This seminar aims to assess to what extent this has been achieved or can be achieved. Among the active participants are Jan Halbersztadt1, Jean-Paul Smets2, Thomas Ebinger3 Ralph Nack4, Robert Berengeno5, Luuk van Dijk6, Arne Brand7 as well as representatives of Linux-Verband.de, KLID.dk, SSLUG.dk, informaticians, lawyers and officials of concerned administrations. 1examiner at the Polish Patent Office, theoretician of sui generis software protection 2wrote a report for the French government on this subject, s. http://www.pro-innovation.org/ 3lawyer, wrote dissertation arguing for limitation of patentability 4patent lawyer at MPI in Munich, wrote dissertation and numerous articles arguing for extension of patentability 5lawyer and president of ENEF, an association of Internet startups 6works on a swpat compromise recommendation at the order of the Dutch parliament 7speaker of the German Social Democratic Party's Internet Association 1 10:00-11:00 The Software Patents of the EPO Examples and Figures • Function Claims: problem vs solution, functional vs causal • Difficulty and Abstractness • 11:30-12:30: Solving Problems by Using Natural Laws or by Calculating? { the concept of technical invention in the EPC and customary law until 1986 The concept of Technical Invention of the EPC and caselaw until 1986 • How many of today's patent claims pertain to technical inventions? • Elasticity of the concept: physical modelling of logics vs logical modelling of physics • 13:30-14:30: Caselaw since 1986 EPO doctrines and the Practise • Schar (EPA): Invention = practical repeatable solution • Melullis (BGH): Invention = concrete repeatable solution • Chisum, Nack, Laat: Invention = repeatable solution • 15:00-16:30: appropriation interest vs information commons Newell 1986, Tamai 1998 usw: logical innovation is either too abstract or too trivial • Options for fostering a productive and innovative climate • 17:00-18:00: Public Presentation: European Software Patents and Free Software 2.