[Patents] Burce Perens: Software Patents vs. Free Software

[phm@a2e.de (PILCH Hartmut)]

> artmut cites some German court decision from 1976 as some definitive
> work of logic and reasoning.

No.  I cite them as a proof that the software-hardware distinction is
present has a legal basis, supported not only by law texts such as EPC
52(2) but also by carefully worked-out doctrines of various lawcourts.
Although the most authoritative decision is the Dispositionsprogramm
decision of 1976, there are a lot of others up to the year 2000 that can
be quoted equally well.

This is something Greg permanently denies, even though he knows better.
He keeps claiming that there is "no legal basis" for eliminating software
patents.

> He later concedes that the current EPO term "technical effect" is
> ill-defined.

That's not a concession but a criticism of the EPO, and a point on which
we seem to agree.

> Well, the EPO decision that concedes technical effect is ill-defined,
> in turn cites a German court decisions that concedes technical effect
> is ill-defined.

??
A lot of this EPO caselaw is characterized by shoddy reasoning, so you
can't build any arguments on it anyway.

> So I suspect that the 1976 has its illdefined terms as well, which
> makes them unreliable as gospel for you all to worship.

As I said, you can certainly find something to nitpick in the 1976
decision, as anywhere else.  Yet the 1976 doctrine was very elaborated and
quite capable of further elaboration, in case you find some unclear
questions.

> But these arguments are mostly irrelevant.  There is only one important
> difference between us that has any logical basis - that software is not
> physical and therefore not patentable.

??
I can't follow this dogmatic statement.

But it is good to know that at least you are not trying, as some very
hardcore patent lobbyists do, to claim that software is "just as physical
as anything else".

> Even if I concede that ill-defined characterization,

so you still belong to the hardcore group that wants to negate the
categorial difference between information and matter ?

> here in the US the courts have repeatedly rejected physicality as a
> criteria for patenting.  Across the Atlantic, you all are arguing all
> of the same arguments we argued years ago.

On both sides of the atlantic, these well-founded doctrines were not
brought down by well-founded reasoning but by political pressures from the
patent movement.  In Germany the doctrines have perhaps been formulated in
the most stringent manner, which is why they withstood the pressures for a
longer time.  When the patent movement started prevailing here, this
resulted in extremely shoddy zigzag logic of EPO decisions in the 1990s,
as well as in similar US caselaw.

> You either eventually reject this as well, or enforce this physicality
> argument, triggering a dispute with the US and JPO vis-a-vis the WTO.
> I bet on the US courts logic being that which wins.

Again for the 10th time:

If the EU really doesn't want software patents, nobody needs to be afraid
of a few WIPO lawyers and their shoddy logic.

The US government won't send the marines over either.

-phm