[Patents] Re: Software Patents

[phm@a2e.de (PILCH Hartmut)]

> I have been watching the postings on this matter with great interest - I
> have found it quite ironic that whilst many lawyers are trying to change
> things (not necessarily for the better, granted), so many of the German Open
> Software contributors have been harking back to legal history in the shape
> of decisions handed down in the mid-70; this shows a serious failure to
> appreciate normal evolutionary processes in law.

many evolutions are aberrations that need to be corrected.

> (1) If Open Software groups are really serious about stopping software
> patenting then, subject to what I say below, they will have to tackle the
> law as it is now, not twenty-plus years ago;

We are tackling the law as it is.
Certain groups of lawyers have deviated from it in a way that was
anticipated by the Dispositionsprogramm decision and by law textbooks in
the 80s, see

        http://swpat.ffii.org/stidi/korcu/

> (2) The only way to stop change to the EPC and to block the planned EU
> Directive on patent harmonisation is to produce hard *economic* evidence
> that software patents will damage European software producers (e.g.
> measurable "chilling" effects on innovation).

This evidence is there in abundance.  See also

        http://swpat.ffii.org/vreji/siskuen.html

The page does not have all the references to studies in this field.
Moreover, it is always hard to measure things.
Prof Straus quoted F. Hayek at the Berlin meeting with a saying like:

        I prefer inexact and true statements over exact and false ones.

"reliable statistical data" are often used to dress up false statements,
based on some mistakes in the way the question is asked or the like.

For the normal software developper, a look at the junk that the EPO
grants is enough.
This stuff is simply indiscussible.
By writing an economic study on it, you risk creating the impression
that you are treating it seriously.

> Even where directed to the present day, purely legal arguments will
> not necessarily work because, frankly, even the existing laws can mean
> anything you want them to mean (let me give you an extreme pro-patent
> interpretation of the existing EPC Art. 52 prohibition purely as an
> example: "a computer program ... as such" only means its expression in
> code as protected by copyright - everything else is patentable);

In that case the law has no limiting meaning, is full of contradictions
and creates arbitrary results.

It is clear that law cannot be interpreted just as you like.  There are
certain accepted methods for interpreting law: literal, historical,
systematic, intentional etc.  In any case the result of the interpretation
must be meaningful, and the kind of interpretation
that is exemplified in Dispositionsprogramm fulfills this requirement
while "modern" ones such as the one you are sketching above don't.

> (3) There is absolutely zero prospect of getting sui generis
> protection for computer programs - the United States will simply
> threaten to apply trade sanctions if we deviate from their line, just
> as they did over the introduction of program copyright (and I can
> guarantee that the WTO won't stop this).

There is a lot of freedom to extend copyright in certain ways if there is
a legitimate demand for it.  If there is no such demand, then there is
even less of a need to accept software patents.

Moreover, if you are referring to Art 27 TRIPS, we could also accuse the
US of failing to provide a clear concept for technical invention and
lowering patentability barriers for protectionist purposes.
See also

        http://swpat.ffii.org/stidi/trips/

on that.  There are more documents that prove that lowering patentability
standards was a tactic deliberately used by the US to erect trade barriers
against Japan.

The pressures come only from a lobby of lawyers in the US, and whether
Europe can resist them is merely a matter of will.
Usually corrupt governments are especially easy prey of this type of
pressure.
It is always Japan and some third-world countries that are pressured into
compliance first.
Maybe Brussels is more susceptible to this kind of pressure than Berlin
and Paris -- I don't know.
In any case there is at best a certain political reality, not a legal
necessity, which we have to take into account.

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