From phm@a2e.de  Mon Nov 20 00:48:16 2000
Date: Mon, 20 Nov 2000 01:48:16 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] FFII Database of European Software Patents and
 Press Conference

> That aside, Hartmut is exaggerating these issues.  The programming freedom of
> the world is not at stake.  Software development has had a healthy and
> economically thriving history of 40 years in America and Europe, continuing

In medieval (or nazi) times, there was thriving economic and cultural 
activity.  What does that have to do with freedom?

> Additionally, Europe cannot treat its patent system in isolation,
> which I am sure has not escaped the attention of European governments.  
> With less software patent activity in Europe, European companies will
> beless able to sell their software in countries like the US where
> software patenting is much more active. Software patents are a trade
> barrier of a sort - for Europe to get rid of them is a form of
> economic unilateral disarmament that makes little sense.

This again is the normal patent lawyer FUD.
With no softpats in Europe, European companies will be free to develop
and market their programs, and those who are willing to engage in 
arms stockpiling can acquire US softpats.  Soon some lobbyists in the
US will start crying about unilateral disarmament.
 
> In the end, these arguments come down to which court is least confused
> about computing, the Germans or the Americans (and I will compare the
> two once I get can an English translation of these decisions Hartmut
> is always referring to.) The German courts argue that software is not
> patentable, while the US courts argue that it is.
> How does one choose which set of judges are in the right?

Maybe both are right.
The German law says so, the US law doesn't.
However, the US practise also has a tradition of saying that patentable
inventions must pertain to "transformation of matter".
Which was overturned in 1981 in the CAFC decision on Diamond v Diehr.

> Myself, seeing two courts so much in disagreement, I think it is a mistake to
> fix the system by banning "software" patents, but rather, as I have argue for
> many years (longer than Hartmut), would rather work towards fixing the patent
> examination process so that most of these crappy patents don't issue (manyof
> which can be invalidated on the unambiguous grounds of lack of novelty, as
> opposed to the more trickier obviousness).

It doesn't help our programming freedom very much, if we just get rid of
those patents that are not new.
 
> And frankly, that is my bet on how the European governments will
> ultimately decidecide.  To play the game of global software, European
> companies are going to need software patents and the experience of
> patenting in a global economy where companies from other countries are
> playing these games (starting with IBM whom Hartmut doesn't have the
> balls to question their "dark side").

They can acquire that experience in the US, if they need it.
Arguments of regional competition are loser arguments in any case.
You can twist them any way, and the patent attorneys always bring them up,
because they have nothing substantial to offer in terms of a 
macro-economic benefit that could serve to justify the restrictions
on freedom of expression.

-phm






