[Patents] Re: protection needs beyond copyright? (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Sun, 19 Aug 2001 09:20:15 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
To: intprop-l@topica.com
Subject: Re: protection needs beyond copyright?

Axel Horns wrote:

> I am not principially opposed to a 'sui generis' protection scheme
> for software but I agree with Greg that no proposal for a practically
> workable solution not crippling the entire patent system seems to be
> out there up to now which doesn't rely on patenting principles and
> which can properly be delimited against patent law.

1 What you agree with is not what Greg said.
2 the whole purpose of a "sui generis system" is to "cripple the patent
  system" i.e. relegate it to where it came from and where it belongs
3 the patent system itself is a sui generis system for technical
  inventions (see Dispositionsprogramm explanations on "Auffangbecken")
  which is quite well delimited by relying on the Dispositionsprogramm
  doctrine, refusing to patent algorithms no matter whether they can
  refer to machines or not

> A few days ago I asked on this list Josef Halbersztadt who was
> pushing the 'sui generis' debate to explain how to take computer-
> implemented and/or computer-implementable inventions off the scope of
> patent claims without destroying patent law but I have not seen any
> convincing scheme yet.

It has been proposed here but you have not answered.

In light of this, your continued talk of "computer-implementable
inventions", "crippling/destroying patent law" imho casts doubt on your
sincerity.  It seems to make it clear that you are arguing on the line of
hijackers who say "either unlimited patent inflation or no patents at
all." PA Springorum (http://swpat.ffii.org/vreji/papri/eukonsult00/mayr)
uses this ploy to hold the patent system hostage for his software patent
lawyer agenda, apparently launching the whole patent system's weight
against whatever resistance he may meet. This kind of behaviour is really
dangerous, not only for those whom he is trying to steam-roll over (such
as the software industry) but also for the patent system itself.

It needs to be recognised that copyright and trademarks are defined by
broad and flexible principles and therefore suitable for extension to new
domains, while patents, design certificates, utility certificates etc are,
by the monopoly strength and complex bureaucracy they imply, inherently
sui generis systems for specialised areas, suitable for extension only
within close limits (e.g. by subsuming biology under "controllable natural
forces").

Of course also for certain software algorithms, sui generis regulations
can be installed if it is decided that they are helpful and if they are
balanced against various values that have to be taken into account. They
will be different at least in many details, even if some of the priciples
used are reminiscent of other systems.  The difference is dictated by the
differenc in

- the way solutions are found (reasoning vs experiment)
- the way systems are built (functional hierarchy with work character
  and sequentiality vs physically determined structure)
- the economics of the ensuing products

etc.  Even copyright and patents have some things in common.  That is not
a reason to integrate them into one huge system.  A system can only be
huge and all-encompassing, if it is based on a balance of values, therebey
limited monopoly power and no need of bureaucratic apparatusses.  If the
patent system is to expand, it must get rid of the examination apparatus
and become as flexible as copyright.  Woudn't that "cripple the patent
system" in your view?

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
85000 signatures against software patents         http://www.noepatents.org/