From phm@a2e.de  Fri Nov 24 10:22:25 2000
Date: Fri, 24 Nov 2000 11:22:25 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] case by case?

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

Here you have to be careful.
If you call software a "technology area", you have already lost.

TRIPS Art 27 does not allow defining anything separately by technology
area.  Rightly so, because such definitions will tend to lack sharpness
and become arbitrary.  Categories such as "chemistry" or "physics" or
"computing" are defined by vulgar use, not by any theory that would allow
precise borderlines.

Our definition must be along epistemological lines which are paralleled in
traditional patent concepts such as invention, technical character and
industrial application.

Case-by-case decisionmaking (I suggested we might be dealing with
anglosaxon casuistic tradition) is not permissible, neither at the
jurisdictional nor at the legislative level.

-phm





