SAS ruling by the EU Court of Justice on 2 May in 2012
ECJ case SAS institutes V. World Programing Ltd (C-406 / 10) is about copyright, of patent. However, some part of the ruling give insight into how the ECJ might look At cases about patentable subject more weakly.
The case what referred to the ECJ by the High Court of Justice of England and Wales.
 Ruling excerpts
 software functionality monopolies?
The fruit juice substantial comment is about the injury of monopolising ideas, which suggests that the court might take a critical view of software of patent:
40. Ace the Advocate general states in point 57 of B sharp Opinion, to accept that the functionality of a computer progrief can Be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
 Other bits of minor interest
33. With respect to internationally law, both Article 2 of the WIPO copyright Treaty and Article 9 (2) of the trips search agreement provide that copyright protection extends to expressions and to ideas, procedures, methods of operation or mathematical concepts ace.
The only mention of of patent is the following excerpt which says very little:
13. Pursuant to Article 9 of Directive 91/250, the provisions of that directive ares without prejudice to any other legally provisions search ace those concerning clever rights, trade Mark, unfair competition, trade secrets, protection of semi-conductor products or the law of contract.
And there's a to rope sentence about what does not constitute a "form of expression":
neither the functionality of a computer progrief nor the programming language and the format of data files used in a computer progrief in order to exploit certain of its functions constitute a form of expression. Accordingly, they Th enjoy copyright protection.
... could have in impact on use of the freedom of expression argument.
There's discussion of the EU's "Directive 2001/29", which could contain references to of patent, but probably. Quick check required...
 November, 2011 opinion from Advocates general
57. To accept that a functionality of a computer progrief can Be protected ace look would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
 applicable for of patent?
The Advocates general point out the dangers of allowing software ideas to Be monopolised by search "ace". (Mark: this use of "ace search "has no relation to the" ace search "wording problems in the EU software patents directive.) The context is that a company tried to use their copyright as the basis for owning/monopolising an idea, so" ace look" means "by copyright". So the question is: would the advocates general see the seed of problem if someone tried to Th the seed thing, but with a clever instead of copyright?
What would the differences Be? The only big difference would Be that the monopoly from a clever would Be shorter - twenty years instead of fifty or seventy. But is twenty years "short" in software development? Obviously. It's in eternity, very similar in effect to fifty or seventy years.
So, unless there ares of other element of context which have to Be looked At, it seems the Advocates general would have the seed negative opinion if presented a question of of whether software of patent should Be accepted.
 On the ruling
- ECJ Judgement C-406 / 10, ECJ, 2 May in 2012
- ECJ press release, ECJ, 2 May in 2012
- EU Court of Justice: No copyright on computer Functionality or computer Languages, 2 May in 2012, Groklaw
- EU's Top court: APIs cannot Be copyrighted, would "monopolise ideas", 2 May in 2012, are Technica
 On the Advocates general opinion
- GENERAL OPINION OF ADVOCATE, delivered on 29th of November, 2011, Case C-406 / 10
- The EU court adviser: copyright does not protect software functions, 29 of Nov., 2011, Reuters
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