From libs@cybercable.tm.fr  Thu Nov 23 22:45:42 2000
Date: Thu, 23 Nov 2000 23:45:42 +0100 (CET)
From: Jean-Marc Libs libs@cybercable.tm.fr
Subject: [Patents] Re: Patents digest, Vol 1 #345 - 13 msgs

Please allow me to reintegrate a part of the message you were replying to
(with proper indentation an attributions)

On Wed, 22 Nov 2000, Ram'on Garc'ia Fern'andez wrote:
> On Wed, Nov 22, 2000 at 09:45:23AM +0000, Edward Avis wrote:
> > >From: Gregory Aharonian <srctran@world.std.com>
> > >Subject: Re: [Patents] natural forces

> > >So again I argue that there is nothing different about software.
> > >Whatever complaints you have about software patents apply to many
> > >other technology areas being patented as well, and therefore if
> > >you argue against software patents for these reasons you should do
> > >so against other sorts of technology patents as well.

> > Each needs to be decided on a case-by-case basis, working out whether
> > granting a twenty-year monopoly is economically justified.

> This is a common misunderstanding and one of the issues why in
> general it is difficult that patents work well. The examiner cannot
> decide when a patent is good for the society or not. He can apply
> the law only. Nothing more. Nothing else. If the law says that
> a patentable invention has "to be non-obvious" (US) or "it must
> have an inventive step" (Europe) and an invention meets these
> criterion the patent office *must* grant the patent.
> 
> The decisions of goverment agencies cannot be arbitrary.

What you say is very right, but I believe that in the context of his
answer to Mr Aharonian, Mr Fern'andez meant "case-by-case" in the sense
"technology area-by-technology area" and not "patent-by-patent" (which
would be impractical and subject to arbitrary, as you point out).

It makes sense for the law to define separately for each technology
area if patents are good for this technology area.

The point being, patent (as they are defined now, especially considering
the 20 year duration and the incremental nature of software development
and the low infrastructure costs) are not suited at all to the software
technology area.

Jean-Marc Libs






