From phm@a2e.de  Mon Oct 23 20:54:41 2000
Date: Mon, 23 Oct 2000 22:54:41 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Greg's FUD

In Patnews, Greg wrote about the EC consultations

>     Currently the European Patent Commission laws (52.2c) prohibits
> patents on "computer programs" "as such". However by playing some of the
> claiming word games ("technical effect") that we used to play here in the
> US, European patent lawyers and the EPO managed to find ways to grant tens
> of thousands of software patents.  So the study's first proposal is to 
> stop playing these word games:
> 
>   Option 1: We could stay with the status quo, subject to removal of the
>             exclusion of "computer programs" "as such". This would, we
>             consider, have no consequence except the important one that
>             SMEs and independent software developers will be less likely
>             to consider computer program related inventions unpatentable.
> 
> As they point out, this would have little practical impact, and maybe
> encourage more in Europe to apply for software patents.  52.2c is an
> impotent rule that would never survive a TRIPS challenge filed by the
> US, so it is highly likely that Europe will at least implement Option 1.

This is untrue, as Greg knows after having been told dozens of times on
our list and after having been pointed to

	http://swpat.ffii.org/stidi/trips/

Bernhard Mueller reaffirmed in London that the EC has the right to
interpret Art 27 TRIPS in such a way that software will not be patentable,
if that is what is decided after the consultations.

> The study's second proposal:

This study is not of any great importance, and what Greg calls proposals
are mainly options that had been put forward by the Directorate for the
Internal Market, not options that we are facing now.  This becomes clear
from the context in which the study is cited.

Sorry Greg, you are losing.  Your propaganda for universal patentability
will not assert itself in Europe.  Your novelty knowledge database will
soon become worthless at least for Europe and not much later also for the
US.  You will no longer be able to play the role of a world saviour by
busting patents.

Dave Kappos from IBM and another colleague said it clearly at the London
meeting:  While there is no borderline between software and business
methods, there is one between technical inventions and non-technical
innovation.  The EU Commission is on the right track in defining this
border restrictively and IBM will be glad to give up its non-technical
patents.  IBM has acquired these patents only, because a few madmen in
town are selling guns to everybody and IBM, as a rationally acting
economic player, has to make sure it gets hold of the best guns.  The US
is already too deep in the muddle to be able to recover.  But once Europe
takes the lead in stopping this madness, East Asia and eventually the US
will follow suit.

It was exciting to hear how all the patent lawyers angrily attacked IBM as
being the old villain company that had always spoiled their game.  If Greg
had been there, he certainly would also have attacked IBM as being the
villain that is about to help make his great patentbusting database
worthless.  Greg is already on the side of the few remaining patent
inflation reactionaries of this world.  Read his braindead comments from
Patnews: 

> I am very disappointed with all of the English lawyers involved with
> preparing this study for ignoring the works of one of the world's best
> mathematicians, a fellow Brit, Alan Turing who along with Church and Post
> and other logicians made it quite clear that hardware and software are
> logically equivalent, that "software" is as much "technology" as "hardware"
> is, especially in light of current hardware/software codesign tools.  All
> that is important is if a new algorithm is novel, unobvious and enabled -
> implementing the algorithm in hardware, software, DNA, optically, and/or
> mechanically is then a marketing choice that shouldn't affect patentability
> - these five forms of embodiment are an equivalence class for patentability.
> Again, I can't see efforts to not implement Option 2 surviving a TRIPS 
> challenge from the US, so my guess is that Option 2 will eventually be
> adopted as well.  Good software patents do exist and should exist, so
> the goal should be to fix the system to kill the crap.

Evidently, no such challenge will be ever filed, unless Greg is at the
head of the Foreign Trade department in the US government.
  
> So my guess is that the powers that be will amend enough of the European
> patent laws to implement Options 1 and 2.  It makes the laws cleaner and
> allows everyone to focus on the problem of improving the quality of
> patent examination, on both sides of the Atlantic. 

Greg is here abusing a mediatic power that he has acquired in order to
deliberately misinform 3000 readers about current developments in Europe.
He is so much in a hurry to misinform, that he can't even find the time
to get the name of law in question correctly.

-phm





