From phm@a2e.de  Mon Jul 30 16:49:17 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Mon, 30 Jul 2001 17:49:17 +0200 (CEST)
Subject: [Patents] more (dis)information from Patnews
Message-ID: <Pine.LNX.4.33.0107301729430.5662-100000@mulix.oas.a2e.de>

It would have been nice if Greg's Patnews had inserted a link to the
meanwhile translated Walzstabteilung decision rather than just echo the
talk of the German judge, who did everything to please his patent lawyer
audience at a meeting in March 2000, before the subject gained publicity.

Meanwhile, the Keukenschrijver speech can be found under

	http://swpat.ffii.org/vreji/papri/keuken00/

with comments, so far in German only, and a link to the mailing list
exchange on the subject.

Moreover, the see also how Greg can't miss out any opportunity to deride
open source programmers for not agreeing his expert opinion about
copyright being "far more exclusive than patents".

----- Original Message -----
From: <clients@bustpatents.com>
To: <srctran@bustpatents.com>
Sent: Sunday, July 29, 2001 8:49 PM
Subject: PATNEWS: Sex scanal in the Patent Office (okay, it was in 1887)


> !20010729  Sex scandal in the Patent Office (okay, it was in 1887)
>
>     --  1887 sex scandal at the Patent Office
>     --  EPO to drop PCT-light effort?
>     --  News on business method patents being submitted to EPO
>     --  Damages in the Cadence trade secret theft case (against Avanti)
>     --  Comments from German judge on evolution of their software
patenting
>     --  Open sourcers don't understand economics
>     --  "TRIPS-PLUS" treaties leave WTO in the dust

> Another area where there is controversy about patentability is in
> business and administrative methods. The EPC explicitly excludes methods
of
> doing business as such from patentable subject-matter. Even so, there has
> been a large increase in the number of applications in these areas because
> of the expansion of "e-commerce" on the Internet and decisions handed down
> in the United States by the Court of Appeals for the Federal Circuit that
> business methods are not necessarily excluded from patentability in
America.
> We currently have a stock of about 400 such applications waiting to be
> searched and examined, a figure which has more than doubled in the last
> two years.
>
> In practice the great majority of the applications do not simply
> claim abstract business methods, but rather describe technical means (e.g.
> computer networks) for carrying out these methods. These applications are
> not considered to relate to methods of doing business as such, and are
> examined in exactly the same way as any other applications. They are thus
> patentable in Europe if they fulfil the normal requirements, including
> novelty, inventive step and industrial applicability. However, it has to
be
> stressed that an invention - in the strict interpretation of patent law -
> must overcome an objective technical problem in a non-obvious way. In
other
> words it is the technical invention which a "business machine" may relate
> to which makes it patentable, not simply its commercial ingenuity.
>
> [GREG NOTE: whoever wrote this at EPO doesn't understand the word
> "technical".  All business methods are implicitly technical if you
> properly define "technical" in terms of its applied science connotations.
> More in a paper I will be releasing in September.]

[phm note:] While it is true that the person at the EPO has a muddled
understanding of "technical", Greg's understanding makes that term
meaningless.  After protracted discussions, Greg now knows well what the
term originally means.  But I would be very surprised if the september
paper contains any references to that meaning, let alone any serious
attempts to understand it.

>     --  COMMENTS FROM GERMAN JUDGE ON EVOLUTION OF THEIR SOFTWARE
PATENTING
>
> >
> > BGH-Beschluss Walzstabteilung 1980 a decision of the German Federal
> > Court which confirmed that a rule of organisation and calculation does
> > not become a technical invention by the fact that it is executed on a
> > computer, even if it serves to control the cutting of rolling rods in
> > an industrial manufacturing context.

This is another example of journalistic malpractise.  While excluding
me from his readership, he quotes my writings without reference, and he
eliminates what is not useful for his propaganda but useful for the
readers: the reference to the webpage of the Walzstabteilung decision:

	http://swpat.ffii.org/vreji/papri/bgh-walzst80/

> Walzstabteilung is the prototype of a clever mechanical invention that
> could have been patented even at the times of James Watt.
>
> Alfred Keukenschrijver, Judge at the German Bundesgerichtshof, in a
> lecture given at Munich on March 29, 2000, compared case law in the
> computer field to the Stone Age:
>
>     "One may differentiate three periods in the decisions of the
>     Bundesgerichtshof, including certain transitory effects, namely a
>     kind of paleolithic period, a mesolithic period, and a neolithic
>     period, of course with regard to computer programs.
>
> He then summarizes:
>
> Paleolithic period 1976 - 80
>
>   Dispositionsprogramm and Antiblockiersystem are the most important.
>   Flugkostenminimierung also belongs here. "This was quite a restrictive
>   period.  Patent protection was only possible for technical programs,
>   whatever that may be."
>
>   Walzstabteilung is from 1980 and thus paleolithic, and he cites it as
>   an "extreme case". "To me, this always was the decision which I had the
>   greatest difficulty in understanding." (This is Judge-speak and means
>   that the decision was plain wrong.)
>
> Mesolithic period
>
>   "This was a period of marked change. "Seitenpuffer", "Chinesische
>   Schriftzeichen", a special case, and "Tauchcomputer" were cases where
>   a change of direction occurred."
>
> Neolithic period
>
>   "We now are in the third period which still is somewhat in haze, but
>   I think if one waits a few months and looks at things retrospectively,
>   one will see that there have been quite considerable changes."
>
> Judge Keukenschrijver also refers to a decision "Betriebssystem" (Oct.
1990)
> issued by the 1st Senate (copyright) and which is more restrictive in its
> views.
>
> Just remember that we are still in the Stone Age, and wait until we enter
> the Bronze Age where dusting methods and banking tricks can be patented.
> Some banks will even call this the Golden Age...
>
> Sincerely
> Hans Raible
> raible@z.zgs.de
>
>                               ====================
>
>     --  OPEN SOURCERS DON'T UNDERSTAND ECONOMICS
>
> The following was reported out of a recent open source get together,
> a comment from an executive at one of the Linux companies:
>
>     Red Hat's Tiemann said later in an interview that one of the issues
>     Microsoft continually skirted during the debate was its use of
>     patents to "protect its interests."
>
>     "The open-source community sees that as a very negative thing,
>     because a patent's only purpose is to exclude competition" and
>     interoperation of software from different vendors, Tiemann said.
>     "We want free-market economies and we want to run in a race that's
>     not already been won by somebody else", he added.
>
> Patent's only purpose is not to just exclude competition.  Intellectual
> property has always been a exclusion principle of free market (and
> copyrights are much more exclusive). Eliminate the patents and you have
> another kind of market.  And the open sourcers' biggest buddy, IBM, is
> orders more negative with its patents than Microsoft ever will be, let
> alone is.  That said, the quality of issued patents has to improve greatly
> before its low levels completely undermine the integrity of the
> patent system.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/



