[Patents] Re: national technicity theories

[PILCH Hartmut phm@a2e.de]

> this proves only that you ignore answers and you do not even read them

Your last one was indeed very difficult to read.
I may not have read it all, because
- your typesetting makes it difficult to distinguish between the 
  commented text and your comment
- many of your comments are too cryptic to be useful 

> we do not follow every view of the French Government or of EPO and
> make our own struggle against american-thinking people like the EPO
> (and like you ?) as you would have seen at www.cncpi.fr

You do frequently cite a certain French tradition, but it is hard to argue
with such terms.  My way of thinking is to look for basic concepts which
are valid outside a specific system of law and then try to bring those
together with legal concepts.  This is also what the BGH did when it
created its theory of technicity in the decisions "Dispositionsprogramm"
(1976), "Antiblockiersystem" (1980) and "Flugkostenminimierung" (1981),
and I think they did a very good job that is worth being considered,
independent of any national traditions. In GRUR 1977, p. 58ff, you can
find an article by Gert Kolle, who reported on the software question in
the German delegation at the EPC negotiations, which, although regretting
the fact that "from now on the way to patentability is blocked for
informaticiance once and for all", applauds the epistemological soundness
of the BGH theory and explains that it is a completely new interpretation
to what so far had only been habitual law (Gewohnheitsrecht).

I wonder whether Karl Popper's epistemology is Austrian, German or
Anglosaxon, but it certainly provides nice concepts for explaining some
basic confusing questions, and the BGH used almost the same concepts.
Good ideas tend to find independent confirmation in various sources.

> instead of assuming once again that I want to stuff you with patent
> litterature

I'd be quite interested in such literature, but it needs to be accessible,
preferably somewhere on the Net.  FFII is trying to make German literature
on this subject accessible at http://swpat.ffii.org/vreji/papri/.

Also, before being pointed to literature, I'd like to be able to recognise
from a short sentence or two what I can expect to find in that literature
and why it is worth reading.
 
> btw POUYET even if dead remains an Authority in the patent field
> you may consult the books at CEIPI (Strasbourg)
> this was only to help you to clarify your logileges (=  French loi de1844 ) 
>  which are not workable in the present version, because Pouyet has 
> thoroughly discussed the general problems of patent and society as well as 
> the French loi de1844 

This is not a very clear pointer, although I'll try to remember it.
 
> I do not believe your German philosophy / patent litterature is
> workable today 

The French report at

        http://www.pro-innovation.org/

contains in chapter V a philosophy that was independently conceived and
arrives at very similar conclusions as the BGH did in 1978-1981, perhaps
even slightly more precise and workable. 

If you can think of any cases where the BGH/Pro-Innovation criteria aren't
workable, please point out.

It is clear of course that using these criteria will limit the patent
system to its home base and allow an area of growing economic importance
to stay outside of it.  But that doesn't make it unworkable.  On the
contrary: it may be the only chance for keeping the patent system workable
at all.

> but it is natural that you use your national view and the American
> view (gorilla-imposed through the Net)

If you read some of the American writings on this mailing list, you will
see that they simply believe that "patents are evil".  The more important
the realm of logical innovation becomes, for which this belief is valid,
the more people will share it.  And finally people will find that there is
no need to keep a patent system, because the realm for which it could work
is no longer perceived as important.  Thus, by sticking to an unworkable
philosophy, you may actually be ruining the system.

The customer is the king, even if His Majesty is often only a greedy King
Kong.  The EPO understands itself as an enterprise at the service of such
King Kongs.  This is the EPO's philosophy which permeates all greeting
texts from Mr. Kober and others.  

Court philosophers are frequently the grave-diggers of the monarchy they
serve.  I wonder if that is also your and Mr Breese's role.

-phm