From pb@breese.fr  Sun May  6 18:14:24 2001
From: pb@breese.fr (Pierre Breese)
Date: Sun, 06 May 2001 19:14:24 +0200
Subject: [Patents] consultation questions
In-Reply-To: <Pine.LNX.4.33.0105061815130.8428-100000@mulix.oas.a2e.de>
Message-ID: <B71B5310.17CC%pb@breese.fr>

> 1. In how many % of the 30000 software patents granted so far by the
> EPO is the claimed contribution to technological progress so
> precious, that it could be worthwhile for us as lawmakers to
> reward this contribution by granting a 20 year monopoly?
The "technological progress" " has not to be =B3precious=B2, but only respect
novelty and inventivness.
> What do the EPO software patents usually claim and how high is the
> average cost of finding the claimed innovation?
It"s quite easy : just read patent's claims

> 2. Is the software industry's innovativity suffering from too rapid
> imitation,=20
yes, indeed. Particulary SME's.
>or does the traditional regime of copyright make
> imitation costly enough to allow the first mover a sufficient
> market advantage?
No, copyright concerns only the form of the software.
> 3. Which contributions to the progress of information technology do
> we owe to the incentive offered by software patents?
In helping the rise and the growth of european small companies innovative i=
n
softwares progress.
> Why would conventional incentives on the basis of copyright not
> have sufficed?
Copyright is a protection of the form of the software and does'nt permit to
protect the core of an innovation.
> What would a "specially-tailored software rewarding law" (lex sui
> generis) look like, that combines the advantages of copyright and
> patent law and avoids their disadvantages?
Not necessary. Patent law is well adjusted.
> 4. Why is there a phenomenon of Free Software but not free hardware?
Free harware does exist. It's an old idea, of "abolitionist" lobbysts
(precursors of Free Sofware lobby since 200 years).

> Which role could/should Free Software play in the information
> society?
Providing an offer of inexpensive software not protected by prior patents,
or with the authorization of the owner of prior patents.
> Under which rules can proprietary and free software prosper
> together productively?
They prosper together et this time. They have to respect their respective
specifities.
> 5. According to which rules do European courts (EPO Technical Board
> of Appeal, German Federal Court and Federal Patent Court) judge
> the patentability of software?
The EPC rules !
> Art these rules clear?
Yes, for the patent attorneys, the EPO examiners and the judges.
> Where have they been formulated in the clearest terms?
This is the target of EC (directives) and EPO (modification of art. 52)
> 6. According to which rules did European courts judge the
> patentability of software in 1980?
> Were these rules clear?
> Where have they been formulated in the clearest terms?
Idem
> 7. Which clear delimiting rules aka invention concepts are there for
> us to choose from today?
> How many % of the total number of EPO patents (hard and software)
> would be confirmed as valid, if each of these rules was applied?
70% probably (the same % as in other technical fields)
> 8. Assuming these rules were codified as European Directives, what
> would happen to those patents that could no longer be confirmed as
> valid?
have you never seen a law with retroactive effect ???

Sincerly yours

Pierre BREESE  pb@breese.fr
BREESE MAJEROWICZ 3, avenue de l'op=E9ra 75001 PARIS
T=E9l. 0147036777  Fax 0147036778  http://www.breese.fr




