[Patents] radical vs moderate proposals

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Mon, 13 Aug 2001 20:17:04 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
Reply-To: intprop-l@topica.com
To: intprop-l@topica.com
Subject: RE: could you amend the statistics if they are wrong

> > Here my experience is that
> > (1) swpat are pure idiocy and beyod repair.  To know that you don't need
> >     economic findings.  Economics tends to obscure the matter.  A look at
> >     the patent database from the perspective of a programmer is needed.
>
> So the only thing we are discussing is the impression that we get out of the
> patent systems. You feel it is idiocy, I feel it's working well.

In that case probably you just don't feel anything.
You are not looking at real existing patents with the eyes of a
programmer.
As soon as we can look with those eyes, there is no longer anything to
discuss.
As long as we can't look with those eyes, all discussion risks missing the
point.

> This seems to be a very weak argument either way.

It is indeed not an argument but a question of perception that comes
before arguing.
It is very hard to make up for the lack of this by building an argument.

> > (2) The system as a whole is not working well.  Read Machlup.  There are
> >     good reasons to restrict it.

> Simply because 3% (this is my understanding from the final part of
> your letter) of the patents

Yes.
I am talking about "3% of the patents",
         not about "3% of the swpat".
3% of all patents is quite a lot.

> should never have been granted is not
> sufficient reason to start changing the system. It is an argument for
> making the administrative and procedural elements of the system more
> efficient (I feel Greg Aharonian has been already put that argument).

No matter how efficient you make them, that won't eliminate those 3%.
Moreover, I am not talking about changing the system but about doing what
the EU Commission purports to do: clarifying, harmonising, streamlining.

> > What is proposed is to end an illegal adventure and return to a well
> > established practise, founded in the current European law and supported by
> > elaborated doctrines, especially those worked out by German courts in the
> > 60-80s.
>
> It is my impression that through the development of these doctrines they
> have been found not workable and leading to very contradictory decisions by
> German courts in the late 80s. Therefore, they have evloved into what is
> currently the approach.

They were perfectly workable, but there was a strong political will to
change the way things worked.  There BGH was faced with strong pressures
to change its rules

        http://swpat.ffii.org/vreji/papri/krasser86/

and resisted for a long time, citing the reasons given in the
Dispositionsprogramm decision.

> This is a standard way that judicial decisions develop in many areas
> of law.

To state that "decisions evolve" etc is a standard way of weakening the
sense of responsibility and accountability of those people who make those
decisions and who still today are responsible for deciding the future
course.

> > The revolutionaries are sitting in the EPO and in Brussels.  If the
> > Eurolinux proposals were implemented, nothing would change, except that
> > about 3% of the currently granted patents become worthless.  This is at
> > least the result of my investigations on the patent database.
>
> In the petition there are the following:
> 1. a definition of invention;
> 2. a definition of industrial applicability;
> 3. a definition of inventive step;
> 4. a requirement that computer programmes be not equivalent "innovative
> method to process digital information", "existing technique to digitize
> natural forces" or "existing digital model of matter"
> 5. an proposed interpretation of the term "programs for computers"
> 6. suggestion to move the part of the field of patents from EPO to the
> Commission
> 7. a rule on interpreting claims.
>
> This is a whole set of rules, which I understand should be implemented by
> appropriate legislative action. All this concepts are at the heart of the
> patent system and affect not only the area of software. I cannot imagine
> anything closed to a revolution in the patent system.

None of elements proposed by the Eurolinux paper is new.
They are mainly restatements of principles found in the EPC, in the EPO
guidelines of 1978, in the German and French caselaw of the 70/80s.
Point 4 of your above list is taken from the pro-innovation.org study
and is also only another way of saying the same thing that was said in
the court decisions of the time when the EPC was created.

If you look at the

        regulation proposal web page
        http://swpat.ffii.org/stidi/javni/

then you find even the language closely modeled on the established
EPC/EPO/BGH wordings.  Some of these are in fact very good and not in need
of rewording of the pro-innovation.org type.  However the latter does help
to shed light on some questions from a different perspective.

> Keep in mind what a reasonably acting lawyer will do when he sees all
> this language which practically ask for creative interpretation, which
> suits the current case.

The aim of the whole "clarification", "harmonisation" etc exercise is, as
I understand, to bring clarity to important legal rules which have during
recent years become very unclear and also divergent between different
branches of jurisdiction (e.g. BGH vs BPatG/17 in Germany, "restrictive"
line of British courts, "liberal" line of EPO, divergences and lack of
systemicity within the EPO, contadictios between law and practise, etc
etc).

This of course requires some efforts.  Probably our proposals are still
not clear enough.  They can hardly be, if they are not put to a few 100
test cases.  That's the kind of work which DGIM should imho be doing.
There consultation paper mentions only 1 fictitious case of a user
interface for a business process, which they apparently want to be
patentable.  There is no attempt to propose clear concepts and demonstrate
how they can be applied to real cases.

We are supposed to be setting rules for 20 years, as Mr. Noteboom said in
the first conversation with an Eurolinux delegation.

If any effort at systematisation will be seen as too radical, then what is
the point of the whole exercise?

Is the current "legal uncertainty" and "lack of uniformity" perhaps
better than any real reform?

Regards,

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

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