[Patents] Re: Software Patents

[phm@a2e.de (PILCH Hartmut)]

> > There is absolutely zero prospect of getting sui generis protection for
> > computer programs
>
> And there is no need or justification. Our legal system is flexible enough
> for creative application of the basic principles to new technologies.

This is a rather frightening statement of a conservatism of the
unenlightened kind, which seems to be widespread in legal circles.  See
also Jozef Halbersztadt's remarks on this in

        http://swpat.ffii.org/penmi/linuxtag-2001/jh/

Unfortunately many areas of law in fact evolve in this way:  a group of
lawyers firmly believes that their once-learnt set of rules is suitable to
accomodate anything that may come. This seems to be one of the basic
principles behind evolution of IP laws and one of the reasons why whole
branches of "legal evolution" must later be discarded as aberrations and
why decisions such as Dispositionsprogramm (or Benson v Gottschalk) may
become time-enduring points of reference.

The IP law system looks like wildly running horse-cart, without any
supervision from the cart-driver (legislator), based only on some instinct
of the horses (lawyer conservatism).  At a certain point, it will of
course run against a wall, and then those who are squeezed in-between, in
this case software developpers, have to bear the burden of trying to bring
this heavy cart back on course.

It's too bad lawyers and politicians are of so little help.  When people
start saying that there is "absolutely zero prospect of ..." I however
feel a bit encouraged.  If there was really zero prospect, the other side
would feel no need to appeal to our lemming instinct.

One reason for me to keep quoting an old court decision is that this court
decision explains, at least in principle, the whole economic rationale
that is at the heart of most of today's observations on the inability of
the patent system to perform well in the area of software.  The concept of
technical invention would be uninteresting if it was only a legal concept.
But it is not.  It is a link between law, philosophy and economics.

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