[Patents] French State secretary for Industry against SoftPat

[phm@a2e.de (PILCH Hartmut)]

Greg again started reiterating his sermon without having replied to the
questions that were posed to him.    These questions were:

- Have you published Jim Bessen's reply to your unilateral criticism?
- Where would you draw the subject-matter borderline, if at all?

Fortunately your writing can be seen as a reply at least to the second
question.  A reply by evasion:

> >So where will you draw the line in the future?  Pierre, where will the
> >line between what is patentable, and not, be drawn?

> At least for software, the line is easy to draw - no software patents
> on software ideas that are not new or are obvious variations of
> existing software ideas (and the same for business methods, which

You are evading.
We are talking about the border between patentable and non-patentable
subject matter.
Anyone knows that an "invention" has to be new and non-obvious.
So that is beside the point.

> despite the illdefined decisions of EPO Board and BGH satisfy the
> technical effect criteria - their decisions are hilarious in first
> using the phrase "technical effect" and then admitting they don't
> know what it means).

Apparently your answer is:  there is no such border, there are only the
traditional criteria of "new" and "obvious".  And anyone who tries to
define a borderline based on subject matter / technical character is
doing something "ill defined".

> Industry doesn't fear the open source or free software movements, and
> their attempts to derail software patents - it is a losing war.

Apparently you fear those attempts very much, which is why you have to
resort to prophesying and "realism".  "Realism" is the last resort of
those who have lost the argument in the ideal world.  And reality changes
when arguments are lost.  The only tactic left to the loser is then the
appeal to "realism" and desperate attempts at self-fullfilling prophesy.

> What industry fears is any attempts to get the patent system to work
> more efficiently and thoroughly,

Again some full-mouthed speaking in the name of industry.  Who appointed
you to speak in their name?  I know enough people in industry, even some
responsible managers in big corporations, who think that the patent system
as a whole, especially patents on business and program logic, is a drain
on the industry and an impediment to progress.  They have usually not
given much thought to whether this is due to a design fault of the system
or only to the inefficiencies you are trying to address, but they
certainly don't profit much from the presence of this system.

> such as providing examiners more time, money and resources to do their
> jobs to eliminate software patent applications that aren't novel or
> are obvious.  That change to the patent system is something that can
> be done

So then do it.  But fix the bugs first before releasing the code and
forcing us to buy it.

People have been attempting to fix those bugs for 10 years now. New
Patents readers need to know: Greg edits a newsletter called PATNEWS,
which has been calling for bugfixes for 10 years, while at the same time
advertising Greg's patent busting services.  Greg regularly points
out that all bugfixing attempts have failed, and usually sees some
evil "industry interest" as the reason for this failure.  E.g. IBM's
interest as the reason for the failure of the "fraudulent Software
Patents Institute" (http://www.spi.org).  It seems that Greg himself
is the saviour who has the correct bugfixing recipe, but nobody listens
to him.  So all he can do is go on and export the bugs to Europe and
make a lot of money there as well.  Which is of course only an
unwanted side-effect.  Greg's real concern is fixing the bugs of
the patent system.  But to fix them, you must first compulsorily
conscript all Europeans as pre-alpha testers of a buggy implementation of
a buggy concept.

> without changing any laws or engaging in any fruitless
> philosophical debate between the mental and physical, technical and
> scientific, etc.

Your contempt of an inability at philosophical thinking doesn't make
philosophy fruitless.

> Industry fears real effective change.

The patent movement fears real effective change, just as it fears a real
discussion.  Greg is one of the few representatives of that movement who
have come out in public to discuss, but he does it in an unfaithful way,
always reiterating and never acknowledging previous results of the
discussion, and always trying to compensate his failure in winning the
principle debate by a denigration of philosophy and an appeal to
"realism".  In fact to the realism of a powerful and expansive patent
movement which is still well entrenched and poised to expand, although its
legitimating basis, the number of real inventions in society, is
dwindling.  Thus the patent movement shows all the traits of Brezhnevs
Soviet Union: fear of change, fear of discussion, internal stagnation,
external expansionism, full-mouthed bragging about the inevitable course
of history, sectarian Newspeak.

> So I do not take anyone seriously in industry who talks about patent
> quality but who doesn't talk about improving the fundamentals - i.e.,
> the resources available to examiners to do the jobs they are well
> trained for.

> I also don't take seriously those outside industry who talk about
> eliminating software patents or create illdefined, arbitrary
> non-scientific rules, since that is just way too politically naive to
> effect any change.

Those people are inside the industry and enjoy a growing support of >200
companies.  Your constant attempts at defamation show how damned seriously
you take the threat that these people pose to your movement's business in
Europe.

> There is a system

There is a dysfunctional system --

> - just make it work better,

which we neither believe in nor have the power to reform, and which you,
an ardent believer and reformer, have failed to make better.

> and lots of complaints about silly software patents go away.

30000 European software patents must go away.  I haven't seen any that
are not silly.  What reform recipe can you offer to make them go away?

> Combine that with loser pays in European litigation, and you guys in
> Europe will have nothing to worry about.

Another full-mouthed prophesy.

We are not talking about the future.  We are already facing patent
threats.  Currently however most of the threat letters take US patents and
US patent litigation practise as their basis, even if corresponding EPO
patents exist.  THis is because of the "legal uncertainty" in Europe. Most
of those who threaten are reluctant to be the first to create caselaw
here, in a situation where computer programs are officially not
patentable.  So it is clear what we must do in order to have nothing
to worry about.

-phm