[Patents] Re: Software Patents

[srctran@world.std.com (Gregory Aharonian)]

Hartmut comments about a proposed EPO directive:
>It is built on an arbitrary concept of "technical effect" for which no
>definition is given.  The examples .... are both abstract and unclear,
>allowing anything to be deduced from them. .....

And the use of "technical effect" also has no clear definition in the
EPO Appeals Board pension method decision, nor a 1988 BGH decision cited
by the EPO decision, both of which explicitly concede they have no clear
definition.  Which suggests to me, without even reading it, that the
Dispositionsprogram case Hartmut worships also has no clear definition
of "technology" and however they referred to "technical effect" back
then.  For the Dispositionsprogram case did have such clarity, it would
have been cited by both the EPO Board and especially the BGH.  But for
the BGH to concede it doesn't have a clear definition of "technical
effect" is to concede that such clarity isn't in the Dispositionsprogram
decision.  If the BGH is so dismissive of its brethren's decision, I
think that is a good sign that everyone else should dismiss it as a
historial relic, just like a fair number of US appeals court decisions
over the last hundred years against software patents and business method
patents are now being dismissed, as more recent court decisions, in more
recent times, readdress the issues and realize the earlier court
decisions were wrong.  Given the lack of clarity in Dispositionsprogram,
I suspect arguments based on deeper understanding of mathematics and
logic could convince the German courts and the EPO Board to change their
minds as well.

The US courts over the last 120 years have repeatedly supported the
policy of allowing the patenting of non-physical processes affecting
intangible commercial goods.  It is a series of decisions more
comprehensive in scope, and more consistently recent, than the 
European (especially German cases).  In fact, I am setting up a Web
page with the fulltext of many of these decisions.

So as a bit of advice to Hartmut, relying on one set of court decisions
to win your argument is a losing strategy.  All such decisions have their
flaws, and all such decisions usually have a counterdecisions that nulls
them out.  It is a game lawyers play better than anyone else.

And at least in the US, as a percetnage of industry sales, software
patents are having no more of a disruptive effect, than patents in
other areas of technology.  Biotechnology and pharmaceutical patents,
and their economic consequences, are a bigger problem, followed by
digital hardware and electronics patents.  And to date, with regards
to open source and freedom, the only individual or small entity to be
sued for using open source software is, ........, Greg Aharonian.
Since I have gotten zero support in my battle from the open source
community, I can only conclude that they are lying when they claim to
be worried about the economic affects of software patents (beyond the
fact that many are applying for their own software patents on their
own volition).  So I am skeptical about an economic attack on software
patents, because my data (which is bigger than yours) shows that the
disruptions are typical for any new area of technology being patented
(new in the 20 year sense, patent practice does take a very long time
to mature).

Which leaves me always arguing to improve the quality of issued patents,
all patents not just software, so that the bad crappy patents never
get issued, people like me are put out of business, and most of these
controversies (usually due to crappy patents) disappear.  In fact, you
would think Germans such as Hartmut would want to apply their country's
association with manufacturing and quality to the patent process (which
is a manufactuing of sorts).  Issued patents should be Mercedes, not
Yugos.

But do please continue to act contrary to these suggestions.  It is more
business for people like me, for which we thank you effusively.  HaHa.

Greg Aharonian