From phm@a2e.de  Mon Nov 20 20:59:16 2000
Date: Mon, 20 Nov 2000 21:59:16 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] natural forces

> So I find it inconsistent with these theories and tools to treat hardware
> and software differently when it comes to patenting, and strongly
> believe that people against software patents are actually against both
> software and hardware patents, and without too much of a leap, against
> all patents in general.  I can respect that view, but not the lesser
> argument of banning just software patents.

Another way to look at it:
Our first concern is informational freedom.
This issue is quite independent of patent law, it is intruding from the 
outside, and this intrusion may be creating difficulties within the
theories of patent law.
I believe that these difficulties have been and can still be resolved
along the lines of technicity theory.
You don't.
No matter who is right, European patent law contains a several disclaimers
which guarantees that, no matter whether technicity theory works or not,
certain (mental/informational) activities are not touched by patent law.
If you fail in defining a workable theory about the limits of
patentability, the disclaimers are still there to protect us.
And even without a systematic theory about "technicity" and "invention",
we can define the border with a simple list of disclaimers, as done
by the EPC in 1973, and still be in line with TRIPS.
You are not allowed to force anyone onto your patent playground just by
deciding to fail in defining a consistent theory on the limits of
patentability.  The disclaimers come first, the theory must be built
to suit them.  If you fail to build it, then it is you who have to cope
the result.  Forcing programmers to cope with it is not permissible.

-phm








