[Patents] Re: Fwd: Onderhoud met Dumortier...

[PILCH Hartmut phm@a2e.de]

> - It is a wide spread misunderstanding that software is not patentable
>   in the _current_ European legal system: the well-known clause that
>   excludes software from patentability in the patent laws seems to
>   have been interpreted many times (by courts) already as being a
>   ``mistake'' and is not considered to be valid in practice.

At least according to German legal understanding, the Law is above any
consensus of patent lawyers about what ought or ought not be in the Law.
This view is also upheld by the German Federal Patent Court.
The fact that Mr. Dumortier qualifies this consensus as being of higher
value than the law itself disqualifies him as a partner for
serious dialogue. He is apparently one of those people who do not dare to use 
their own
capability of logical thinking but will always submit to the pressure of
the consensus that is currently dominating.  So lets work hard to shape
the consensus to whose pressure Mr Dumortier, Mr. Mueller and the like
will then adapt their pliable (and unlogical) mind.

> - The European Union is going to install a separate patent judge, in
>   order to separate the powers that are now all in the EPO.

nice.  But one judge is not enough.  There should be a parliamentary
monitoring commission and a budget for interdisciplinary research on the
limits of patentability.

> - There are three groups of decision takers to influence:
>   - European commission
>   - European Parliament
>   - national delegates

> - The ``decision'' to be taken on december 15th is not more but a
>   _starting point_ for a much longer procedure in the European
>   parliament.

interesting points.

> - _The_ way to go is not to advocate a yes/no law as far as patents

nobody is doing that.

>   are concerned (this has _no_ change of being accepted because it
>   puts the whole patent system in doubt), but to make a strong list of
>   ``considerations'': enumerate cases in which patents are/should
>   definitely not be granted, with an extensive and rational
>   motivation.

OK, another thing to add

(1) clear no to software patents
(2) clear theory of technicity
(3) nice list of casuistic considerations 

>   These considerations will be _very_ influential in court cases,
>   because any current and future law will be very open to
>   interpretation. It is also very important to list patents were the
>   ``non-obviousness''-test has failed miserably. Anyway: defining
>   ``non-obviousness'' is the key to the patent right, and this is a
>   very hard thing to do properly...

I don't believe that any casuistic list will be very influential in courts
which uphold the principle of "in dubio pro inventore" (in doubt for the
applicant).  Any advice that tells us to find a way to please lawyers and
adapt ourselves to caselaw is wrong.  We are currently taking the question
of patentability out of the private circles of caselaw-worshipping lawyers
like Dumortier and Mueller, and putting it into the big realm of public
policy.  That is the path we should pursue.

The lawyers, even those who are in the position of a policy-maker, usually
lack the imagination for realising this difference.  Even as a
policy-maker they keep up their worship for caselaw.  This applies to DG15
as well as to the BMJ people.  We would have gotten nowhere if we had
adapted to this kind of lawyer culture.

-phm