[Patents] Re: legal insecurity

[PILCH Hartmut phm@a2e.de]

Mr Mobach warned Mr Breese:

> You are encouraging illegal deeds. Software patents are illegal in
> Europe. They are as illegal as drugs. No need to explain that to
> someone from France ? Know that I agree with the French people that
> many Dutchmen are behaving illegal regarding drugs.

Encouraging illegal deeds can be a defendable position.  A while ago I was
working in a patent case where a company decided to persist in illegally
using patented technology because they felt that the patent in question
was not being enforced and that it was unlikely that it would ever be
enforced.  They calculated that even in case of enforcement it might be
better to struggle in court and pay damages afterwards than to pay now.
The patent attorney agreed with them that this was probably a wise thing
to do, and he was right.  You can't advise people to observe rules that
are not likely to be enforced.

This brings me to another point:  legal insecurity.  Patents often put
law-obedient citiziens like Mr Breese or even normal patent attorneys into
positions where they have to advise people to act unlawfully and in fact
even risk penal prosecution.

The patent in my above case was in a heavy industry case, where not very
many players are involved.  In the software business with lots of small
companies like that of Mr. Mobach, the legal insecurity would be
infinitely greater.  To restore some kind of security, out-of-court
settlements and mafia-like collective security deals could become the
order of the day.

When in the 70s the problem of software patentability was discussed,
people were aware of these inherent problems of the patent system and this
was one of the reasons they decided it can't be applied to
software.  Mr. Kolle, who now allegedly is responsible for the Base
Proposal, also wrote that. 

-phm