[Patents] RE: How decisions evolve (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
From: PILCH Hartmut <phm@a2e.de>
Subject: RE: How decisions evolve
To: intprop-l@topica.com

> > 1. Judges can only jump in to fill law gaps that have arisen due to a
> >    change of social or legal conditions.  Applicable decisions of
> >    the legislator may not be replaced by judge law.
>
> Precisely what has happened. The scope of what is technical has expanded as
> the technology develops. The courts have followed that change.

Nothing of the sort has happened.

Most big breakthroughs in informatics linear programming, finite elements
and most other things was concluded before the EPC was even negotiated.
After it came an odd and boring period of IBM/M$ PC software.

The recent BGH caselaw "Logikverifikation" is just another case of the
"Walzstabteilung" type, nothing new in structure or challenge.

> Please read my examples and note that the changes which were introduce
> there are going miles further than the change which has happened with
> regards to patents.

Which examples?

> > 2. It is the constitutional court's job to examine whether particular
> >    judge law really solved an existing problem of a law gap, and
> >    whether the solution contradicts constitutional values, especially
> >    basic rights.
>
> And the constitutional court never objected to these developments. I
> understand you can file an individual constitutional complaint in Germany.

No, usually they cannot.
Most constitutional complaints by individuals are turned down.
They need to be under a direct threat by judicial authorities, and the
other judicial means need to have been exhausted already.

> However, I would seriously doubt you would be succesful.
> Looking at the background of judicial developments in other areas of law,
> the situation in patents is perfectly normal.

This is empty rhetoric in this context.

> > It cannot be permissible to turn programmers into offenders (according
> > to civil and criminal law) over night just by issuing a few judicial
> > decisions.

> This is demagogy. The patents you are trying to nullify have been
> around for a number of years in Europe and US. Nothing like you state
> here has happened.

It has happened.

In fact every programmer today is a potential offender of lots of patents
that are looming around, and some have in fact been scared into taking
their programs off the net.

There is an incomplete list under

        http://swpat.ffii.org/vreji/pikta/xrani/

I know quite a few more cases, some of which I am allowed to publish but
have not yet had the time.

In any case, the basic freedom and intellectual property of freelance
programmers and small enterprises has been "naively or wilfully" (Kolle)
stolen by a drunken party of patent law experts, under whose influence
some lawcourts lost sight of the problems they created.  But I think as we
are discussing here, they are gaining back that sight, and some
constitutional complaints may help to accelerate the process.

--
Hartmut Pilch                                      http://phm.ffii.org/
Schutz der Innovation vor der Patentinflation:   http://swpat.ffii.org/
85000 Stimmen gegen Logikpatente:            http://www.noepatents.org/

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