[Patents] (no subject)

[John Smith notobvious@hotmail.com]

I stand corrected on the EPO's designation as an IGO.

Hartmut Pilch's discussion of Karl Popper's philosphy of social engineering 
has provoked me to 2 minutes' deep thought on the purpose of life in general 
and patents in particular. Here's the "notobvious" theory of patents:

PATENTS ARE ABOUT MAKING MONEY

End of theory.

All the talk about "two worlds" (or was it three?) won't alter the fact that 
patents are in the end a practical matter. The justification for their 
existence is economic and the administration of the system is based on 
practical considerations. They are, if you like, very anglo-saxon. Patents 
will be scrapped tomorrow if governments decide today that they hinder 
economic activity. That they don't tie in with somebody's philosophical 
theory or epistemology or legal theory or world-view is irrelevant.

And let's be honest, it's a world-view issue. Criticising Greg or Pierre 
Breese because they makes money out of patents is a bit of a giveaway isn't 
it?

That's not to say that there are no ethical issues involved, but they are 
about what is patented rather that whether patents should exist at all. I 
say this because like Greg I have noticed that Hartmut Pilch's arguments are 
ultimately about patents in general. The anti-patent hysteria of groups like 
Greenpeace deflects attention from a real problem in how technically 
qualified people should handle moral issues. One of the more depressing 
moments in an otherwise happy life was sitting at dinner with Prof 
Chakrabarty (with Pauline Newman on my other side) and asking him about the 
ethical implications of biotech patents. Answer: "Ethics? Ethics? It's all 
about money!".

I don't personally see any moral arguments against patenting software. When 
all the smoke clears all that is left is whether software developers can 
make more money if their stuff is patentable than if it isn't.

Hartmut Pilch has a habit of raising a moral argument against the EPO and 
accusing it of bending or breaking the law. I advise him to take a look at 
legal textbooks. The positivist line he preaches is based on a naive view of 
lawmaking. It's been said that with laws, as with sausages, it is best not 
to look too closely at how they made. They arise not just from a perceived 
need but from a mixture of competing pressure groups and sheer human 
ignorance and incompetence. No law is ever clear or complete and the 
interpretation is - and always has been - a matter for the judges. To repeat 
myself: the EPC was signed on behalf of the national governments by people 
who didn't fully understand what they were signing (as with lawmakers 
everywhere) and left it up to the EPO to decide what it meant. To accuse the 
EPO of breaking the law because it has decided what Article 52 (2) means, to 
the apparent satisfaction of most of industry, is mere polemics. And 
whatever he may say, Hartmut Pilch's view is heavily coloured by the old 
German law and an understandable fear of lawbreaking judges.

>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

Would this by any chance be the brother of Oswald Kolle, the famous German 
sexologist? (The correct answer is, yes). And would it be the same Kolle who 
is said to be responsible for the Basic Proposal? (Again, yes). Somehow the 
two facts don't seem completely unrelated.

Finally, I've yet to see a convincing reply to Greg's point on the 
hardware/software mix:

>With these latest tools, I can describe a complex electromechanical
>system at a high structural level, and then rely on a computer program
>to automatically split the functionality into hardware and software
>implementations. The computer can do this split many ways, depending
>on how much hardware you want to use and how much software. To then
>say that only the hardware aspects are patentable because they are
>hardware, while the software aspects are unpatentable because they are
>software (where the hardware and software are novel and unobvious), is
>inequitable and illogical, and impossible to codify in a body of law
>defendable in front of any rational court.

This is not a theoretical argument - ask Nokia or Motorola. It's also the 
argument that persuaded directorate 2.2.1 of the EPO to change its mind on 
software patents in the mid-80's.

"Notobvious"
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