[Patents] patents at three design levels of software

[PILCH Hartmut phm@a2e.de]

You write in
http://petition.eurolinux.org/consultation/

  the intellectual property created by the software creator can be divided 
into 
  three levels of design, which have been called level1, level2 and level3 in 
  this document. Level1 is shown to be equal to a business model and should 
be 
  patentable as such.

Have you not forgotten a "not" here?

I find this three-level division quite interesting and would tend to agree
that patents do most harm on level 2 (communication infrastructure) and mean
nothing on level 3 (implementation).  Still I think they also do serious harm
on level 1 (workflow model).  Just as level 2 patents work against
interoperability, level 1 patents work against free market competition and are
even questionable under some free trade treaties.  And the investment needed
for innovation at Level 1 is no bigger than at Level 2.  Level 3 is the only
level where one can really try to dicuss about the applicability of the patent
system, because here things become concrete and "technical".  Ironically
though, nobody would want to patent anything at this level, because copyright
works much better here.  This fact has actually been noted by quite early
writers such as

     http://swpat.ffii.org/vreji/papri/grur-kolle77de.html

and Mr. Melullis, a judge at the German Federal High Court, has recently
introduced software patentability by arguing that it should be available at
what you might call level 3.  

     http://swpat.ffii.org/vreji/papri/grur-mellu98de.html

I find this argumenation quite confusing and believe that it is just another
idiosyncracy of someone who is suddenly becoming important, because his
theory, which normally nobody would care to take seriously, allows people to
twist the law into a direction into which there is a "market demand" for
law-twisting.  Meanwhile Mr. Mellulis seems to have noticed, that his
idiosyncracy is being abused.  He stated 8 days ago in Berlin, that he
believes that people are not understanding his theory and that at the moment
it would be better to keep the exclusion of computer programs from
patentability, because he is seeing a large mass of dangerous level 1 patents
oozing out of the EPO, that must be stopped.  He said "I am very much afraid
of that".

-phm