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[ [http://swpat.ffii.org/analysis/epc52/exeg/index.en.html Lenz 52EPC]
| [http://swpat.ffii.org/papers/epo-t971173/ IBM/Computer Program Product]
| [http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm EPO Examination guide]
[ [[http://swpat.ffii.org/analysis/epc52/exeg/index.en.html|Lenz 52EPC]]
| [[http://swpat.ffii.org/papers/epo-t971173/|IBM/Computer Program Product]]
| [[http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm|EPO Examination guide]]
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In the verdict [http://legal.european-patent-office.org/dg3/biblio/t971173ep1.htm T 1173/97 IBM/Computerprogram product] the EPO Technical Board of Appel made a differentiation between programs for computers that are computer programs as such and computer programs that not computer programs as such. This interpretation provides the basis for granting many software patents. In the verdict [[http://legal.european-patent-office.org/dg3/biblio/t971173ep1.htm|T 1173/97 IBM/Computerprogram product]] the EPO Technical Board of Appel made a differentiation between programs for computers that are computer programs as such and computer programs that not computer programs as such. This interpretation provides the basis for granting many software patents.
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 * [http://swpat.ffii.org/analysis/epc52/exeg/index.en.html Interpretation of Art 52 of the European Patent Convention regarding the question to what extent software is patentable Lenz, K.F.:]  * [[http://swpat.ffii.org/analysis/epc52/exeg/index.en.html|Interpretation of Art 52 of the European Patent Convention regarding the question to what extent software is patentable Lenz, K.F.:]]
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 * 1939-15-12 [http://www.marxist.com/Theory/ABC.html Leon Trotzki explains the reasoning of marxist material dialectics to differentiate an issue as such from the issue], a similar reasoning style used by the Technical board of appeal to differentiate software as such from software. Similarly marxists thinking redefines terminology by this philosophic technique.  * 1939-15-12 [[http://www.marxist.com/Theory/ABC.html|Leon Trotzki explains the reasoning of marxist material dialectics to differentiate an issue as such from the issue]], a similar reasoning style used by the Technical board of appeal to differentiate software as such from software. Similarly marxists thinking redefines terminology by this philosophic technique.

As Such explaines

[ Lenz 52EPC | IBM/Computer Program Product | EPO Examination guide ]


In the verdict T 1173/97 IBM/Computerprogram product the EPO Technical Board of Appel made a differentiation between programs for computers that are computer programs as such and computer programs that not computer programs as such. This interpretation provides the basis for granting many software patents.

  • VIII. [...] A "program as such" (excluded from patentability) would therefore in fact be a non-technical program. 4.2 In order to establish the scope of the exclusion from patentability of programs for computers, it is necessary to determine the exact meaning of the expression "as such". This may result in the identification of those programs for computers as a result of not being considered programs for computers as such, are open to patentability. 5.3 This means that programs for computers must be considered as patentable inventions when they have a technical character.

In a mail to Jeroen Dekkers and the "bxl-list" (dated 20041024) Hartmut Pilch explains that "as such" is an intonatory particle, also called appositive, with about as much meaning as the particle "it" in "it is raining":

  • > In fact, there actually isn't really any > difference "software as such" and "software." True. It can help to explain

    • programs as such = programs as programs X1 as such = X1 as X1
    "such" is simply a pronoun referring to the last nominal item mentioned. The syntactic context must be preserved when interpreting the phrase. Creating a nominal group "software as such" and asking what that means is the wrong approach. There is no such nominal group in the law at all. This is a bit like taking the "it" in "it is raining" out of context and asking what mysterious entity this "it" is that is raining there.

Some more discussion about the meaning of Art 52 EPC is found on

  1. http://swpat.ffii.org/analysis/epc52/

  2. http://swpat.ffii.org/analysis/epc52/udgor/

  3. http://swpat.ffii.org/papers/muckonf73/

Hartmut Pilch also explained the background of "as such" on the mailing list patents (at) aful.org 20031023:

  • Art 52(3) was inserted in response to FUD from the UK delegation in 1973 which was clamoring that exclusion of software would lead to exclusion of all manufacturing processes that are computer-controlled. There is nothing mysterious about this particle, and there is even a swedish version of Art 52(3) which does not use it.

Recommended Reading

  • Interpretation of Art 52 of the European Patent Convention regarding the question to what extent software is patentable Lenz, K.F.:

  • 1939-15-12 Leon Trotzki explains the reasoning of marxist material dialectics to differentiate an issue as such from the issue, a similar reasoning style used by the Technical board of appeal to differentiate software as such from software. Similarly marxists thinking redefines terminology by this philosophic technique. The Aristotelian logic of the simple syllogism starts from the proposition that 'A' is equal to 'A'. This postulate is accepted as an axiom for a multitude of practical human actions and elementary generalisations. But in reality 'A' is not equal to 'A'. This is easy to prove if we observe these two letters under a lens - they are quite different from each other. But, one can object, the question is not of the size or the form of the letters, since they are only symbols for equal quantities, for instance, a pound of sugar. The objection is beside the point; in reality a pound of sugar is never equal to a pound of sugar - a more delicate scale always discloses a difference. Again one can object: but a pound of sugar is equal to itself. Neither is this true - all bodies change uninterruptedly in size, weight, colour, etc. They are never equal to themselves. A sophist will respond that a pound of sugar is equal to itself 'at any given moment.'

  • .. Vulgar thought operates with such concepts as capitalism, morals, freedom, workers' state, etc. as fixed abstractions, presuming that capitalism is equal to capitalism, morals is equal to morals, etc. Dialectical thinking analyses all things and phenomena in their continuous change, while determining in the material conditions of those changes that critical limit beyond which 'A' ceases to be 'A', a workers' state ceases to be a workers' state.

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