[Patents] criticism of Horns software patent advocacy

[phm@a2e.de (PILCH Hartmut)]

http://swpat.ffii.org/vreji/papri/bmwi-luhoge00/

I think it would be fair to link to this page from
http://www.ipjur.com/01.php3, where Axel continues to propagate legal
viewpoints that are based on a stubborn failure to take into account the
doctrine of technical invention, which was brought to full maturity during
those years in which Art 52 EPC was formulated and is needed to enable a
meaningful interpretation of this article.

We have argued about this before, and the following text criticizes
another document, in which the same misunderstandings are propagated.

---------------------------------------------------
   Security in Information Technology and Patent Protection for Software
 Products -- Expert Opinion by Lutterbeck, Horns and Gehring written at the
         order of the German Ministery of Economics and Technology

   Prof. Lutterbeck of Berlin Technical University, his assistant Robert
    Gehring and Axel Horns, patent lawyer in Munich, figuring under the
    name of "Internet Governance Research Group", received an order from
     the German Ministery of Economics and Technology in late summer of
    2000 to work out this "short expert opinion" which was published in
        December 2000. A large part of the 166 pages is dedicated to
    reiterating the well-known legal opinion of Horns. Horns states that
   Art 52 EPC was a misconception from the beginning, and that patent law
    will be seriously impaired unless any innovation that is implemented
      through a computer is patentable. However he warns that software
    patents can have a very negative impact on open source software and
   proposes that patent law at least in Germany should be amended in such
    a way that the publication and transmission of source code does not
    violate the law, even if the excecution of object code on a computer
                                   does.


   Title:
          Sicherheit in der Informationstechnologie und Patentschutz f=FCr
          Software-Produkte - Kurzgutachten von Lutterbeck/Horns/Gehring
          im Auftrag des BMWi

   Source:
   http://www.sicherheit-im-internet.de/download/Kurzgutachten-Software-pat=
ente.pdf

   This Expert Opinion, ordered by the German Ministery of Economics,
   largely states the opinion of Axel Horns, patent lawyer in Munich,
   which he had alread exposed in almost identical form in previous
   articles and discussions. Like many of his colleagues, Horns
   interprets Art 52 EPC as an obnoxious misconception of the legislator.
   He eloquently avoids to understand its underlying systematic teaching
   about the technical invention. The software patent critics, who base
   much of their legal opinion on this systematic understanding of the
   current law, are labeled as "ideologues".

   Instead of analysing the details of this expert opinion, we will first
   present here a few extracts from our discussions with Axel Horns. In
   order to understand more deeply the background of this discussion, you
   may want to browse through the [128]legal literure on the notion of
   technical invention. Horns keeps silent on this literature, mentions
   at best helpful fragments of the [129]ABS decision and occasionally
   insinuates that once upon a time there was an "outdated" concept of
   technical invention and and an "old core theory" (i.e. the doctrine
   that a claim must be stripped of its "linguistic clothing" and that
   not the claim wording but the "inventive core", i.e. the problem
   solution in return for whose disclosure a monopoly is granted, must be
   an application of physical causality). Unfortunately the reasoning of
   Horns itself could be seen as "outdated" compared to the concept of
   technical invention and the "core theory". The Horns teaching lacks
   novelty compared to the reasoning of a whole range of theorists and
   court decisions of the 50s, 60s and 70s, that were, after a long
   argumenative back and forth, overruled by the landmark decisions in
   1973, [130]1976 in Germany as well as parallel decisions in France and
   other European countries. The European Patent Convention (EPC) was
   born in this context, and its underlying concept of technical
   invention received a forceful theoretical underpinning by [131]Gert
   Kolle and other scholars of the time, which again found its way back
   into BGH caselaw and into the examination guidelines of the EPO of
   1985 as well as of national patent offices. The discussions with Axel
   Horns quoted here below may demonstrate that he has very little to
   respond to these facts. One attempt at refutal was the assertion that
   the German caselaw of these years is based on the pre 1978-01-01
   version of the German patent law. But a simple look into a [132]manual
   of patent law from 1986 shows that this is not true. The legal
   framework of the European concept of technical invention has not
   significantly changed, and many court decisions after 1978 confirm
   this.

   The LuHoGe expert opinion uses a lot of space on known personal
   opinions that have been forcefully rejected. One of these is Robert
   Gehrings statement in favor of a novelty grace period,
   which echoes a similar demand of the [133]universitarian patent lobby.
   Another is Prof. Lutterbecks frequently reiterated claim that
   copyright is adequate to Goethe's Faust but not to software. This
   claim is no longer state of the art, because copyright has been
   adapted to software through several rounds of revision in the 80s and
   90s; and it contradicts the daily practise and widespread acceptance
   of copyright in all parts of the software community. The fact that
   software functionalities cannot be appropriated by means of coypright
   does not indicate that they need to be appropriated by means of
   patents. It could just as well indicate that they should not be
   appropriatable at all, as has been frequently pointed out by the
   patent law literature. Lutterbeck on the one hand tries to justify the
   expansion of the patent system into the field of abstract functional
   ideas and on the other hand cites Machlup and others to give a
   negative judgement on the patent system as a whole, including the
   field of concrete physical causality, where it has caused much less
   trouble. This way Lutterbeck manages to appear as a critic of the
   patent system while at the same time condoning patent inflation and
   evading the questions he was asked by the ministery of economics.

   On the whole it can therefore be said that the "expert opinion" of
   these three scholars is not state of the art. The Ministery of
   Economics and Technology might want to consider claiming its money
   back or finding other means of financing a followup study report,
   preferably on carefully formulated questions such as our
   [134]consultation questions and specifications for making a lot of
   relevant documents better accessible and organising interactive
   conferences, as the FFII has been trying to do with its limited
   financial means.

   -> [135]Bundeswirtschaftsministerium vergibt Studie =FCber Patente und
          Open Source Software:
          On 2000-08-03 H. Soquat announces that the Federal Ministery of
          Economics and Technology (BMWi) has ordered a study on the
          impact of patents on network security and open source software

   -> [136]BMWi gibt Gutachten zu Software-Patente der TU Berlin, Prof.
          Dr. iur.Lutterbeck u.a., frei:
          The BMWi website announces the publication of the study in Dec
          2000 and explains backgrounds

   -> [137]IPJUR on SOFTWARE:
          Similar arguments from Axel Horns on his website

   -> [138]The Horns argumatation in a JURPC article:
          Another similar article appeared in GRUR 2001-01

   -> [139]Telepolis report:
          Telepolis reports about the LuHoGe report and about dissenting
          voices from FFII, SuSE and others

   -> [140]VDI-Nachrichten:
          reports about the study and the criticism

   -> Discussions on Mailing Lists:

          + [141]Discussion between hartmut Pilch and Axel Horns
          + [142]Telepolis on the report and FFII criticism
          + [143]Luttterbeck Interview with Financial Times Deutschland
          + [144]Daniel R=F6dding: Special treatment for OpenSource not
            recommendable
          + [145]phm: response to Axel Horns
          + [146]xuan: Why physical and logical inventions are
            unambivalently distinguishable
          + [147]phm: yet another response

   -> [148]Article by Wolfgang Tauchert:
          The chief of the German Patent Offices software patent
          department applauds the expert opinion's view that
          patentability can not be limited to technical inventions, but
          criticises their demands for special treatment of opensource
          software as the reflection of particularist interests of people
          who want free access to other's intellectual property for
          themselves and at least in part non-conformant to
          "international legal order" which must take precedence over
          considerations of whether such an order serves a purpose.

   -> [149]Erich Bierampel: Kritik Lutterbeck-Studie:
          Erich Bierampel, inventor and proprietor of some valuable
          patents in the field of measurement technology, is concerned
          about an "exhaustion of patentworthy ideas". He finds that the
          stock market and vested interests have, in their relentless
          drive to develop ever new goldrushes fuelled by patent
          monopolies, inflated the patent system to a degree where most
          patents are trivial and the system itself is close to a point
          of collapse, like an economy after a long period of
          hyper-inflation. He applauds the ministery of economics for its
          decision to take the issue out of the hands of patent law gurus
          of international organisations and openly question the
          efficiency of the system. However he criticizes that the
          authors of this study seem to be more concerned about
          continuing to extend the system and conserving unjustified
          proprietary structures than about actually analysing the
          problems and proposing solutions.
     _________________________________________________________________


    http://swpat.ffii.org/vreji/papri/bmwi-luhoge00/indexen.html
    2000-12 [150]FFII Swpat Workgroup

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