Mes impressions sur [Patents] The ignored default option: Reassert the underlying rules of Art 52!

[jgk.novatek jgk.novatek@estelfree.net]

malgre les bonnes intentions de PILCH Hartmut ,  je pense qu'il ne faut pas
vouloir donner des leçons , car vous trouverez toujours des bonnes raisons
dans un sens ou dans l'autre

malgre les bonnes intentions de PILCH Hartmut ,  son raisonnement calque sur
les americains est defaillant  :     je ne vais pas recommencer une
discussion qui a été censurée et qui serait trop longue

je suis etonne du nombre de 13 000 brevets indiques souvent dans cette liste
comme etant  "de logiciels"

ceci montre une incoherence entre la position de PILCH Hartmut  qui admet la
brevetabilite de systemes ABS de freinage incluant un logiciel ,  car le
nombre de
13 000 brevets indiques souvent dans cette liste comme etant  "de logiciels"
inclut certainement une tres grande majorite de ce genre de systemes

je n'ai jamais vu une liste detaillee de ces 13 000 brevets indiques souvent
dans cette liste comme etant  "de logiciels" , pour me faire une idee

l'urgence à mon avis est de faire auparavant une DIRECTIVE SUR LES LOGICIELS
LIBRES pour faire ENTRER cette notion en Droit français et en droit europeen
car  aucun texte OFFICIEL (reconnu par les ETATS)  ne definit les logiciels
libres

vous pouvez dans cette DIRECTIVE SUR LES LOGICIELS LIBRES  demander les
exceptions d'immunite que vous desirez

cela me semble la meilleure strategie

salutations

jgk

----- Message d'origine -----
De: PILCH Hartmut <phm@a2e.de>
À: <
Envoyé: jeudi 26 octobre 2000 19:47
Objet: [Patents] The ignored default option: Reassert the underlying rules
of Art 52!


> Dear Mr. Mueller, Dear Mr. Bolkestein, Dear European Commission,
>
> Under
>
>
http://europa.eu.int/comm/internal_market/en/intprop/indprop/studyintro.htm
>
> the European Commission's General Directorate for the Internal Market (DG
15)
> has published a study titled
>
>
>     The Economic Impact of Patentability of Computer Programs
>
> which was prepared at the order of DG 15 by
>
>       Robert Hart (Independent Consultant),
>       Peter Holmes (School of European Studies, University of Sussex) and
>       John Reid (IP Institute)
>       on behalf of Intellectual Property Institute, London
>
> We have discussed this study at FFII and Eurolinux.
>
> It is to be welcomed that DG 15 has found it necessary to start
investigating
> this subject.
>
> However, we find that this study does not address those questions that
should
> form the subject of the current consultation.  Moreover, some of the
responses
> from the study are not based on thoughrough investigations of reality but
> rather on widespread prejudices of the patent law community.
>
> Let me explain this by citing some pieces of text:
>
> The IPI study says:
>
>   Summary of and conclusions from the Study
>
>   [...]
>
>   We return to the more general aims of the study.
>
>   I To provide information on a number of key elements to enable the
>   Commission to assess whether the envisaged Directive should be
>   confined to harmonising the relevant laws of the Member States on the
>   basis of the status quo as defined by the jurisprudence, or whether
>   it should extend the scope of application of the Directive.
>
> This is not the question that we should be discussing now.
> We are now facing the following options
>
>   (a) harmonise the relevant laws of the member states on the basis of
>       the recent jurisprudence of the European Patent Office (EPO)
>   (b) harmonise the relevant laws of the member states on the basis of
>       Art 52 of the European Patent Convention and its underlying theory
>       of technicity, as it was developped by national courts such as the
>       Court de Paris and the German Federal High Court (BGH) in a series
>       of decisions in 1973-81 and as it has been upheld by some of the
>       national courts until this day
>
> This can be further simplified to mean
>
>   (a) adaption of the legal rules to the caselaw of the EPO
>   (b) adaption of European caselaw to reformulated legal rules
>
> or
>
>   (a) patentability for anything man-made under the sun, subject to
>       occasional arbitrary restrictions based on EPO caselaw
>   (b) patentability only for inventions, i.e.
>       technical products and processes with an industrial application,
>       subject to clear criteria to be written into the EC Directive and
>       perhaps into the European Patent Convention
>
> Option (b) is really the default option that should first of all be
considered
> when an EC Directive is written and when the EPC is revised.  We are here
> talking about a basic rule that lies at the foundation of information
society.
> Such rules need careful formulation by the legislator.  As the practise of
the
> courts evolves and deviates from the original rule, it is normal that the
> legislator will reassert the original rule, unless there is an overall
> consensus in society (not in patent-law circles) that this rule should be
> changed.
>
> The original rule of Art 52 EPC was at the time of its formulation in the
70s
> carefully worked out on the basis of epistemological and economic theories
> that went far beyond a simple discussion of caselaw, see
>
>      http://swpat.ffii.org/vreji/papri/grur-kolle77de.html
>
> The sophistication of these theoretical considerations of the 70s has
hardly
> ever again been reached in the discussions of the EPO and its friends.
There
> can be no reason to attribute greater weight to the jurisprudence of the
EPO
> than to the underlying theories formed at the time where today's law was
> formulated.
>
> The IPI Study concludes
>
>   On II and III: There may be other ways of formulating the options for
>   possible more wide ranging harmonisation beyond current levels but we
>   suggest the following three:
>
>   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.
>
> This remark seems erroneous in several respects.
>
> IPI option 1 ERROR 1:
>
> What IPI calls "the status quo" is in reality only the jurisprudence of
the
> EPO, which is not fully enforcable in Europe.  Once this "status quo" is
made
> enforcable by a harmonisation directive, we arrive a different reality.
While
> currently the German Federal Patent Court rejects claims to computer
programs
>
>   http://swpat.ffii.org/vreji/papri/bpatg17w6998de.html
>
> on the grounds that they are excluded under the EPC, any move to legalise
EPO
> jurisprudence would force the same court to grant such claims.  The
economic
> consequences of this could be quite significant.  While currently software
> patent claims are never enforced in courts, we could after such a change
> expect a wave of infringement litigation.
>
> IPI option 1 ERROR 2:
>
> Under current law, not "computerprograms as such" but "computer programs"
are
> excluded from patentability.  Likewise, we are not currently discussing
about
> a possible deletion of the "as such" formula from Art 52.3 but only about
a
> possible deletion of the "computer programs" item from Art 52.2c.  It is
as
> silly to construct a difference between "computer programs as such" and
> "computer programs not as such" as it is to construct a difference between
> "games as such" and "games not as such".  Art 52.3 simply reminds the
reader
> that a patentable invention can be connected to a game or a computer
program,
> as long as it is a distinct entity and not the game or the program as such
are
> claimed by the patentee.
>
> IPI option 1 ERROR 3:
>
> To learn about the legal rules of patentability, any SME will always have
> to consult secondary literature.  Just reading the raw law text is not
> advisable, nor is it common practise.  On the other hand, if Europe adapts
> the original clear rules of the EPC to the unclear practise of the EPO,
SMEs
> will have great difficulty in understanding the rules.  Currently, even
> patent lawyers and national patent offices have great difficulty in
> understanding and following the EPO's caselaw.  Dr.iur. Thomas
Winnischhofer
> concludes in his study at
>
>   http://swpat.ffii.org/vreji/prina/drtw.pdf
>           Patentrecht und Computersoftware
>
> that there is no coherent system in this caselaw.  At the UNION conference
in
> 1997, a large round of the patent lawyers and patent office
representatives
> complained that they don't understand the rules for deciding which
computer
> programs contain a "further technical effect".   If patent experts can't
> understand the EPO's ever-changing criteria, how can SMEs be expected to
> understand them.
>
> The above-stated 3 errors committed by the IPI study represent common
> prejudices of the patent law community.  The fallacies in these arguments
are
> quite easy to point out.  Some have been pointed out already in the 1970s,
see
> article of Gert Kolle quoted above.
>
> The IPI Study goes on:
>
>   Option 2: European law could ensure that the mere use of a computer
>   program/computer to implement an invention brings an invention within
>   technology, as appears to be the case in the USA. This would be a
>   substantial change from basic principles of Eiropean patent law. It
>   would be highly controversial. But it would bring European law into
>   alignment with U.S. law on patentability of business methods.
>
> This is a fake option.  Even in the USA attempts to patent the mere use of
a
> computer program to implement a known process are regularly rejected by
the
> patent office and the courts.
>
>   Option 3: European law could be altered to have no requirement that
>   patents be limited to technology. If it were accepted that business
>   methods should be patentable simpliciter then this is the logical
>   consequence. But any attempt to make such a change would cause great
>   controversy. This would interfere in achievement of option 1 and in
>   achievement of adequate understanding by SMEs and independent
>   software developers of the opportunities and risks from the
>   patentability of computer program related inventions under option 1
>   or under the status quo.
>
> The IPI correctly recognises that, if computer programs are to be
patentable,
> it would be consistent to go even further, as has been done in the United
> States by the State Street decision.  However, the IPI advises European
> lawmakers to avoid the controversy that such a consistent approach could
stir
> and rather just legalise the current inconsistent EPO approach as a first
> step.
>
> This may be a smart political advice, but it does not serve the public's
interest.
>
> Fortunately, the IPI authors do not leave the latter completely
unmentioned:
>
>   Very relevant to options 2 and 3, as to any extension of patents, is
>   the caution amongst economists specialising in IP rights. As shown in
>   our economic study of the literature (Section III of our report),
>   most economists have doubts whether economic efficiency, i.e.
>   increased overall welfare, is achieved by having or making computer
>   program related inventions patentable. This caution is supported by
>   the continuing, indeed growing, concern in the USA on the issues
>   surrounding patents on computer program related inventions. The
>   debate in the States is not finished.
>
>   ...
>
> Evidently, the IPI study was ordered at a time where the Directorate for
the
> Internal Market was not yet considering the option of reasserting a more
> consistent and narrow definition of technicity as the one underlying the
> currently still valid EPC.
>
> We wonder why the IPI study wasn't published earlier.  Judging from its
> content, it must have been known to the Directorate for quite a while.
>
> Could it be that the IPI's scepticism about the macroeconomic effects of
> software patents, cited above, were not in line with what DG 15 was
planning
> at the time?
>
> Maybe we should stop speculating and forget this study altogether, since
it
> doesn't answer our questions anyway.
>
> Within the Eurolinux Alliance there is a consensus for option (b), i.e.
the
> return to a narrow and consistent definition of technicity.
>
> We propose to define the concept of invention as
>
>      solution to a problem of manipulating physical objects,
>      consisting of
>
>        (1a) physical apparatuses
>        (1b) knowledge of physical reality
>        (2) calculus / algorithm / instruction to the human mind
>
>      with the requirement that the innovative part must lie in 1.
>      It can be discussed whether both 1a and 1b or only one of them
>      need to be innovative.
>
> The following texts contain detailed thoughts on how our technicity
defining a
> rule can be best formulated today and how it builds on existing legal
> concepts:
>
>      http://swpat.ffii.org/stidi/epue52/
>      http://www.pro-innovation.org/ ;(French report, chapter 5)
>
> We hope that the European Commission will choose one variant of this
concept
> as the basis of its Directive.
>
> Moreover, we hope that the EPO and its board of directors can be persuaded
to
> leave Art 52 untouched in November.  It is neither acceptable to delete
> computer programs from 52.2c nor to introduce the TRIPS universality
clause
> into 52.1.  This universality clause changes the delimiting nature of Art
52,
> and it has repeatedly been used as a pretext to extend patentability.  It
is
> justified within the context of WTO free trade harmonisation, but not
within
> the context of definining the limits of patentability.
>
> We can not have "some pregnancy".  Either we find a reliable way of
performing
> the traditional cut between matter and mind aka physics and logics aka
world 1
> and worlds 2 and 3, or we give up using the criterion of technicity and
move
> in the direction of unlimited patentability as practised by the United
States.
>
> We believe that we have found a way to formulate a clear rule, and that
this
> rule is helpful in separating real patentworthy inventions from the those
> types of innovations, for whose promotion the patent system can in general
not
> serve well.
>
> There are of course other systems that can be used to promote progress in
the
> realms of software and intellectual methods.  Please consider our concept
for
>
>        http://swpat.ffii.org/stidi/basti/
>        Promoting Abstract-Logical Innovation: Logilege and Logidend
>
> which also proposes some new rules that could be applied to the
traditional
> patent system in order to fix many of its problems.  Some people indeed
> propose that the problems of the patent system must be solved mainly in
the
> areas of novelty and inventivity and in procedural areas such as that of
> public scrutiny and compulsory licensing.  These difficult issues should
be
> addressed very soon.
>
> For the moment however, we are facing the problem of finding clear
definitions
> and rules for determining technicity.  Such a definition is not only of
> central importance to society, it is also surprisingly easy to find and to
put
> into practise.
>
> Your work is of central importance to the development of the Information
> Society in Europe and the world.  We need the most extensive and intensive
> possible level of communication, involving expertise from science,
philosophy,
> epistemology, economics etc much more than from patent jurisprudence.  No
step
> that you might take in order to assemble such expertise can be to bold.
>
> Sincerely wishing you courage, strength and wisdom.
>
> --
> Hartmut Pilch
> FFII workgroup on software patents
> http://swpat.ffii.org
>
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