[Patents] Please, don't send me this news letter any more

[paolo.giacalone@fst.it (Paolo)]

Please don't send me this news letter anymore
----- Original Message -----
From: "PILCH Hartmut" <phm@a2e.de>
To: "Gregory Aharonian" <srctran@world.std.com>
Cc: "Roland Orre" <orre@nada.kth.se>; <sf@fermigier.com>; <patents@aful.org>
Sent: Friday, May 04, 2001 7:44 AM
Subject: Re: [Patents] Burce Perens: Software Patents vs. Free Software


> > >Now we may regard the price/unit where we still get your investment
> > >back for selling services based upon .... [ developing hardware and
> > >software]
> >
> > Irrelevant.  Patent laws have never concerned themselves with relative
> > returns on investment.
>
> Itis irrelevant to this point what patent laws have concerned themselves
> with.
>
> Patent laws have traditionally drawn borders between patentable and
> the non patentable subject matters.  And theses borders have been drawn
> based on philosophy which is independent of patent laws.  Such as
> the distinction between material and immaterial embodiments.
> Software is an immaterial embodiment.  So are business methods.
> Patents shouldn't be granted on ideas whose embodiments are immaterial.
> Even some of the European patent scholars at the recent AIPPI meeting
> repeated that, although they have greatly blurred the former doctrine.
>
> > Patents are meant to encourage (for whatever incentive) new and
> > non-obvious technology.   PERIOD.
>
> Wrong.
> I can quote a famous Federal Court doctrine from 1976
>
> http://swpat.ffii.org/vreji/papri/bgh-dispo76/
>
> that says just the opposite, approximately the following (translated from
> German):  "it is impermissible to use the patent system as a kind of
> collecting sink into which any kind of idea will fall that cannot be
> appropriated under other systems, because that would exert an imprevisible
> and dangerous influence on the freedom and economic development of
> society."
>
> This is often quoted even today, after this spirit has been grossly
> violated, and even by those who have violated it.
>
> And when you say "meant to encourage", then evidently there can be fields
> of what you define as "technology" in which innovation is not encouraged
> but stifled by granting patents on all "new and non-obvious" innovations.
> So with the above sentence you may end up contradicting yourself.
>
> > Software is a technology.   PERIOD.   All software applications achieve
> > a technical effect (if anyone in Europe bothered to define a
> > scientifically rigorous definition of "technical effect".)
>
> Music is a technology.  PERIOD.  All pieces of music played on an organ
> achieve a technical effect, i.e. provoke a movement of the organ reeds
> that can be measured in terms of energy, frequency, friction etc.  We have
> all agreed that the current EPO term "technical effect" is ill-defined.
> This does not change the fact that software innovations, like new ways of
> writing pieces of organ music, "contribute no new teaching to the art
> of using natural forces to directly cause a a useful effect" (classical
> formula of German and partially EPO jurisprudence, which has been
> enriched with further even more rigorous definitions, as you well know).
>
> > Thus software is as patentable as any other technology, including
> > hardware.  The production costs are irrelevant, and have never been
> > a factor in the statutory considerations for patenting.
>
> Of course the production costs cannot be considered by patent examiners,
> because that would only add to legal insecurity, given that bureaucracies
> have to either operate on simple principles or not operate.
>
> This however does not mean that the simple principles themselves, which we
> as citizens have a right to decide about, may not be based on economic
> considerations.  And in fact they are and have always been, as you well
> know.
>
> > Additionally, software is completely functional, and therefore (at
> > least in the US) should not be, and should never have been,
> > protectable by copyright.
>
> Functional texts such as operation manuals are also creative and
> protectable by copyright.  Anything text qualifies for copyright, that is
> built on individual human ingenuity and that we don't want people to
> simply copy but rather to take as a source of inspiration for their own
> creative writing.
>
> > Software is a functional technology.  Just like hardware.  That's the
> > science.
>
> That's not science but just the bragging of someone who has no arguments
> and wants to scare people away from criticizing.  Just the opposite of
> science.
>
> > If you want to eliminate software patents, you will have to eliminate
> > hardware patents.  The production costs are irrelevant. Heck, in most
> > cases, the R&D costs to develop the hardware or software product are
> > just as irrelevant.
>
> Again a reiteration of points that were refuted >20 times.
> It is enough that in general there is 10000x less production cost behind a
> software patent than behind a pharamaceutical patent.
>
> > In any logical formalism for basic patent theory, it would be easy to
> > prove logically that software is just as patentable as hardware.  You
> > are welcome to keep on posting non-logical reasons to the contrary.
>
> Again pure bragging of someone who shields his lack of arguments behind
> claims to some mysterious "patent theory" and "science", both of which
> don't exist or are not related to what you claim.
>
> -phm
>
>
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