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

[phm@a2e.de (PILCH Hartmut)]

> Jozef writes in support of sui generis:
> >append petite patent law onto the copyright regulations, where software
> >currently receives its greatest protection anyway.
>
> Other than for specific executable products, copyright provides little
> to no effective protection for software, at least here in the US, where
> the courts and academic papers make it quite clear that software is
> too much process and method to qualify for copyright protection.

At least in Europe the protection has gone quite far since the directive
fo 1992, and software developpers and companies usually express a high
degree of satisfaction with it.

> Copyright is not a viable alternative to patents if you support the
> principle of an inventor being able to control the use of his
> software.

You mean the use of his idea, I guess.
Patents don't give any extra control over the use of a particular software
work.  Rather they remove control because you no longer know whether you
have the right to use the software you wrote.

> Now if you mean copyright gives the greatest protection to users of
> software at the expense of the inventor, then you may be right.

Software authors are usually in a very strong position toward the user.
Patents don't strengthen that position.
They may strengthen the position toward an imitator.
But imitation is usually not as big a problem as software laymen tend to
think.
Even toward imitation, software authors are in a much stronger position
than most authors of other intellectual (including functional) works.
It is much easier to rip-off a good tutorial book than to rip-off a
good program -- not only because object code is (or can be made)
extremely hard to decipher.

The fact that software (similar to a tutorial book) has a functional
aspect may be an argument for considering patent protection, but nothing
in the world necessitates that all functional creations of the human
mind have to be patentable.

> But here in the US, for what is being patented in software, copyright
> is generally considered useless (as useless as the sui generis
> proposals which are little more than dressed up copyright).  Heck, the
> Samuelson Manifesto you all love to cite so tried to deny reality that
> they couldn't bring themselves to use "process" and "method", I think
> using "behavior" and other such words.  That made the rest of their
> Manifesto just as problematic.

Most law specialists have a problem with limiting the sphere of
application of the field of law which they have learnt.  They always tend
to believe that what they have learnt can and should be adapted to
everything.  Unfortunately many law specialists have a great influence on
legislation in their field.  That is like letting butchers determine
health policy or trusting the horses to direct the cart.

Btw, I have taken out some of the individual recipients who were on the CC
list.  They had been on there only because I suspected the report about
the Berlin meeting would interest them.

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