[Patents] Re: [FYI] BMWi Workshop on SWPAT

[halber@timsi.com.pl (Jozef Halbersztadt)]

In my opinion Hartmut Pilch is right when he writes:
>
> The problem here is that they have not investigated the possibilities of
> limiting patentability.  The MPI people just claim that it can't be done,
> and neither the ISI nor the MPI people have presented any example patents
> or made any assessment of which kinds of patents could be favorable or
> unfavorable for software innovation, let alone formulate a rule.
>
> Of course without such a rule, there is no interface between economics and
> law.  It would therefore have been more appropriate to conduct two
> separate studies.  Moreover it should have been made clear that these
> studies are about some very limited aspects of the debate.  They do
> succeed in presenting some insights on those aspects, but that is not
> enough to arrive at the kind of insights that our politicians seem to be
> asking for.
>
> Here definitely the French study
>
> http://www.pro-innovation.org/rapport_brevet/
>
> is much more interesting.  Too bad the authors were not invited to
> introduce it.
>
> It looks as if our politicians are avoiding the pressing questions in
> order to arrive at studies which allow them to avoid making decisions.


Jean-Paul Smets and others study for the French government is important in
two respects. Firstly, it is making the politicians aware (I hope) that
there are any legal obstacles to take by Europe and France an independent
position as concerns patenting of software. It is also presenting arguments
why it is in interest of European and French software industry. This aspect
of the study is developing in details argument that arrived to Europe in
Lawrence Lessig article:" .... Europe should wait. Legislation needs a
better reason than that lawyers like it, and that America does it."
http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT36QMGXJAC&liv
e=true

The second aspect of the raport_brevet is important as well. And it is even
less "new". The study is proposing solutions from the controversy. The one
of the proposed is the sui generis system for protection of software.

"We believe that a sui generis right by which to protect intangible
inventions is the best possible solution for Europe. Therefore, we recommend
that the exception for computer programmes be kept, and that clear limits to
the current patenting system be set. More especially, we propose to make a
constructive definition of the terms "invention" and "technical effect".

This is also a clear invitation to return to the law and to the doctrine of
the Dispositionsprogramm decision.

The practical measures proposed in the French study system are almost
identical to proposals developed not many years ago in the US. They are
similar to the implementation of famous Manifesto 1994 in the Model Software
Petite Patent Act by Mark Paley Act.
http://members.aol.com/paleymark/ModelAct.htm

The details could be discussed. For example raised by me question whether
would not be reasonable to append the Software Act's petite patent law onto
the copyright regulations, where software currently receives its greatest
protection anyway. http://swpat.ffii.org/penmi/linuxtag-2001/jh/


But it is strange that in Germany, in the country of Helmut Oehlschlegel, a
father of the first sui generis proposal (Sollen und koennen Rechenprogramme
geschuetzt werden?, GRUR 1965, 465-468) is needed an intellectual import
from France and Poland to notice that we are not without an alternative.

Jozef Halbersztadt