Here is what FFII sent yesterday to the Opposition division of the European Patent Office (PDF version here, you can also find it in the unlinkable EPO Register Plus by typing EP0927945, local copy here)
From: FFII e.V.
To: European Patent Office
Munich, 6 November 2007.
Ref: 0123 K/S OPPO 03
Subject: Written submission attached to the oral proceedings of FFII Opposition to Amazon
Dear Sir or Madam,
FFII e.V. has submitted an opposition to a software patent granted by the European Patent Office EP0927945 "Method and system for placing a purchase order via a communications network". The oral proceedings, which will be public, will take place before the Opposition Division next 7 December at the European Patent Office in Munich, and in prevision of this event, we would like to submit written comments on the preliminary decision issued. You can find attached to this letter our main objections to the preliminary decision.
We also kindly inform you that FFII e.V. has decided to be not represented by Mr Olaf Koglin anymore, and according to Art 113 of the EPC, we make use of our right to defend our objection on our own before the Opposition Division.
FFII remains committed to put an end to the patenting of software and promote competition in the field of data processing. We opposed because the Amazon patent is an indication of the unethical business practice of the EPO.
President of FFII e.V.
FFII submission on the preliminary decision of the EPO Opposition Division on Amazon's patent EP0927945
The preliminary decision of the Opposition Division says:
"5) Patentable invention, Article 52(2) and (3) EPC
The actual practice of the EPO concerning computer implemented invention leads to consider subject-matter as non patentable only if it does not include a single technical feature. ln the present case, at least a computer system is included in the granted subject-matter. Therefore, the Opposition Division is of the opinion that the granted claims fulfill the requirements of Article 52(2) and (3)."
We strongly ask to revise that view as a general permission for trivial software and business method patenting for which the patent granted to Amazon is an extreme showcase:
I. a) The "actual practice" of the EPO is an irrelevant legal foundation for reasoning of the opposition division. The opposition procedure is based on the grounds of Art 100 a) EPC which refers to EPC provisions as legal grounds of the opposition only. The actual granting practice of the EPO is here opposed on a single case basis. In particular the granting practice of the EPO cannot override the EPC provisions nor constitute customary law. The preliminary opinion is therefore logically circular and fails to provide a proper legal justification based on the EPC provisions. Also the examination guidelines are only indicative for EPO examiners but not for opposition procedures.·
The opposition division lacks competence to change the substance of the convention (cmp. K.F. Lenz analysis annexed to the case). Even the Board of Appeal is not bound by the prac
tice of the office. According to Art 15 Rules of Procedure the Boards of Appeal is entitled to come to different interpretations than the EPO examination guidelines or earlier dec
isions of the Board of Appeal. This implies that examination rules or earlier decisions, unlike the EPC, do not prejudice decisions of the Boards of Appeal.
b) The European Patent Convention Art 52(2) and Art 52(3) which the preliminary decision refers to does not mention any requirements of technical features or a quantity of technical features.
It clearly states that programs for computers are non-inventions. The combination of a non-invention with a general purpose computer does not turn a non-invention into an invention. The claimed non-invention relates to software "as such". Non-inventions are not patentable under the EPC. Further the mere involvement of a computer does not qualify as a "technical feature" but is an essential runtime environment for all operational software. The exclusion of EPC 52(2) states explicitly "programs for computers". This wording implies that the programs are tied to their execution on a computer as their very purpose ("for"). This exclusion cannot be interpreted in conjunction with Art 52(3) using the regular standard methods of legal interpretation as meaning "programs without a computer" as a subject-matter that would become a potentially patentable "program with computer" subject matter by adding claims that mention a computer or network. The claimed software also does not change the technical state of the computer beyond normal execution or human interaction; it just processes data. Data processing does not constitute a field of technology.
II. M 1.1 extends to a "method in a computer system" that is a class program for computers, no computer itself. M 1.3 relates to a software operation. M 7.1 relates just to a medium for software instructions and in M 7.4 the computer (software) "coordinates" by data processing. Thus the independent claims relate only to software.
III. The claimed non-invention is trivial and lacks an "inventive step". For any person skilled in the art the granting of that Amazon software patent is a showcase of the institutional failure of the EPO. FFII does not blame the examiners that just follow the present guidelines. The decision is a Gretchenfrage for the software patenting practice of the EPO and its adherence to the EPC. The quoted phrase above is considered as a magic bullet against the political CII deception. We are curious if the Opposition division would reject one of the most notorious showcases of triviality in the patent system that puts emerging markets at risk.