[Patents] Re: SMEs' awareness

[phm@a2e.de (PILCH Hartmut)]

kodama@netcourrier.com writes:

> > the rest of us want to resolve it in favor of a return to legality,
> > based on the sound doctrines that were developped in 1976-80.
 
> But please, refer to the business situation of this time.  

How?

The patent courts who develop doctrines to interpret the law in a
meaningful manner usually don't refer to the business situation.  It
is not their job decide about economic policy.

And the technicity doctrines developped in 1976-80 are just as
meaningful today as back then, while what the EPO has developped in
1986-97 is full of contradictions and hypocrisy.

> The conditions of these doctrines do not exist anymore, and there is
> no use to be as protective as we were in the past.

All the conditions exist, with an additional condition that an
free/opensource software is playing a more visible role than at that
time and that there is an Internet which is based on open standards
incompatible with patents, see all the trouble the W3 Consortium has
had with patents.

> The world is evolving, and you can not refer to 1976's doctrines to
> determine what is to do in 2001. Especially for software business,
> there is really no connection.

Ever heard of "misdevelopments in the area of jurisdiction" that have
to be corrected by the legislator?  A normal phenomenon, and a reason
behind the division of powers between judiciary and legislature.

The doctrines of 1976 are just as well in line with today's world just
as they were with that of 1976.  The changes made after that time were
not motivated by changes in technology but only by an internal
political decay process within the patent jurisdiction.  We call it
patent inflation.

> > unlimited patentability just like in the US, the only difference being
> > that, while US patents can be directly converted into valid EP patents, 
> 
> That is wrong and not supported.

US software patents are being turned into EP patents with little, if
any, rewriting.  This statement is supported by a look at the EPO
patent database or our version at

        http://swpat.ffii.org/vreji/pikta/ ;

A famous patent lawyer, Mr. Betten, formulates in

        http://swpat.ffii.org/vreji/papri/bettenresch9901/

that the remaining differences are, where they exist at all, a
question of claim wording, and an EPO judge

        http://swpat.ffii.org/vreji/papri/jwip-schar98/

generalises as the EPO doctrine that "any practical and repeatable
solution" is a technical invention.  This is no different from US
doctrines.

> > European SME applicants are scared off by some mysterious
> > rhetoric which claims that there are still some limitations on what
> > can be patented.
> 
> ????? Who is broadcasting this ?
> I can not follow your line of argumentation.

The European Commission's consultation paper, for example.
Or EPO decisions on "pension scheme" and the like, in which they here
and there reject an application for lack of "technical character" and
are then proud of that, using it to soothe the conscience of
politicians who profess to be "against an American-style patent
system".

> Classic critera like novelty and inventive step or new (and probably
> not definitive) criterion of "technical character" should not be
> advertised (except novelty): this is the job of the patent counsel
> to deal with that.

??

Certain basic knowledges about what can be patented and what not, e.g.

  only new, inventive ideas in the area of natural sciences, allowing
  the monopolisation not of ideas but only of material embodiments
  related to producing industries

belong to the general knowledge.  They define the interface between
the patent system and the outside world.  Patent counsels may need to
be consulted when you need to know all the bells and whistles, but the
system should not run too far away from the common-sense general knowledge.

-phm