[Patents] Krasser (1986) on balance between research and monopoly

[phm@a2e.de (PILCH Hartmut)]

Ram'on wrote:

> I think that patents should look for a balance between research work
> and monopoly.

Actually this is also traditional German doctrine, as you can find in the
patent law manual of Krasser 1986

        http://swpat.ffii.org/vreji/papri/krasser86/

I copied and commented only the part on invention and technicity, but
there is a chapter on non-obviousness which states at the beginning that
it is the job of the patent offices to find criteria which allow a fair
balance between

        1 the purpose of rewarding outstanding inventions
        2 the necessity of keeping the path of normal technical progress
          (that would be expectable anyway) free of blocking claims

Thus in fact the basic job of the patent office is what Mr. Raible called
a "patent prevention system".  Krasser's manual is probably part of that
old "irrational" prussian tradition.

However Krasser is rational enough to point out that it is very difficult
to find objective criteria that meet the above basic aim.  But the aim
must be fulfilled even if objective criteria are hard to find, and the
patent offices must measure themselves against that aim and build the
criteria in such a way that the most likely meet the above target (2).
Formalistic excuses are not valid, Krasser also says, from a law doctrine
point of view.

--
Hartmut Pilch
Federation for a Free Information Infrastructure        http://www.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/