[Patents] myth of inevitable universality

[PILCH Hartmut phm@a2e.de]

> I have never read a suggestion from you that would provide a means of
> determining inventiveness (which is the European term for obviousness).

"non-obviousness", of course.

> My suggestion is:  anything that can be derived using codesign tools or
> other purely logical means is non-inventive.

the current proposal, which we have been sending to politicians, is to
define the terms "invention", "technicity" and "industrial applicability".
See

        http://swpat.ffii.org/stidi/epue52/indexen.html ;

You can not evade the problem of defining the limits of the patent system.
The current EPO proposal is to just not define them or use only undefined
rubber notions whose meaning the EPO can modify any time.

The lack of clear definitions is also the reason why in the United States
the courts were able to expand the patent system starting from the Diehr
case and earlier.  As the "Digital Dilemma" report states clearly, this
expansion took place in "unchartered waters", not covered by the
legislator.

Not only do I believe that Europe should preserve its clearer legal
definitions, but we should further proceed to make them clearer, and in
the United States there is already a strong current moving in that same
direction.  There are dozens of articles that explain where the core area
of the patent system is, and why for other areas it would be preferable to
have specialised sui generis systems.  See e.g. the Thurow paper of 1997
published in Harvard Business Review.

Patentability is one of the very few areas in law, where the separation of
powers doesn't work and everything is controlled by a parasitic lobby of
specialised lawyers.  Other areas of this type also exist, such as in
Germany the area of house building licenses.

These are temporary problems of democratic control which will is unlikely
to remain unsolved forever.  Although I wouldn't claim that they will
"inevitably" be solved some day, there are good reasons to be optimistic.  
Balances of power tend to shift, and usually they shift in favor of
solving problems, if we seize the opportunities.  It is therefore
important not to let us be fooled by the "myth of the inevitable
universality of the patent system".

Please, Greg, get over that myth.  You don't need that kind of
professional ideology for driving your fantastic work.  You can later
continue to search for prior art in a sui generis system. And you will now
immediately be free of the inevitable necessity of quarreling with Prof.
Lessig, of attacking the "Digital Dilemma" report, and maybe even of
passing harsh judgements on patent bureaucrats, who are only normal humans
functioning in an unnormal system.

-phm