From phm@a2e.de  Sat Oct  6 18:54:59 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sat, 6 Oct 2001 19:54:59 +0200 (CEST)
Subject: [Patents] Re:  [FYI] New Software Patent Law for Europe Looking Limited (fwd)
Message-ID: <Pine.LNX.4.33.0110061954530.609-100000@mulix.oas.a2e.de>

---------- Forwarded message ----------
Date: Sat, 6 Oct 2001 19:54:47 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
To: intprop-l@topica.com
Subject: Re:  [FYI] New Software Patent Law for Europe Looking Limited

> >The approach being adopted by the commission would allow patents only
> >for software of a technical nature, and it would not permit patents
> >on business methods.
> >The US and Japan allow patents on a much wider range of software apps,
> >and they both permit patents for business methods.

> The US and Japan do so because their courts eventually realized the
> futility of trying to discriminate against various forms of patentable
> material using ill-defined terms like "technical effect", "business
> method", "useful art".

Claiming that Japanese courts "realised" anything is completely unfounded
propaganda (they are actually still talking about certain limits, and most
of what they "realised" was due to US pressure, transmitted through some
patent lawyers at MITI).

Talking about "discrimination against xxx" is a one-sided appeal to
emotions from the perspective of the patent applicant.

While the two above propagandistic ploys disqualify your argumentation, I
do agree to your main statement: terms like "technical effect", "business
method" etc are of no help and just a lie set up in order to allow
politicians to have their cake and eat it.

However, in this case I think it might be the NYT writer who is spreading
this lie.

The Eurolinux demands are, in order of descending priority

(1) Only processes can be patented, not the programs that describe them.
    programs are equivalent to patent descriptions.  Their dissemination
    may in no case constitute a patent infringment, not even a
    contributory infringement, just as the sale of ship building plans
    does not constitue a contributory infringement of a ship patent.
(2) There must be a "technical contribution" or "technical teaching".
    The question of "technical effect" is irrelevant.
(3) An technical invention is a teaching of plan-conformant use of
    controllable forces of nature to achieve a causally overseeable
    effect ... (BGH definition of "technical")
(4) Every teaching has a physical (technical) and a logical part and
    a novel and a non-novel part.  The physical part must be the
    novel part, the novel part must be the physical part. (core theory,
    differential examination)

Although all these points are pillars of European patent law (read
Benkard's commentary of 1988, which is on the bookshelf at the EC), they
are not understood by many people, and, given the confusion and ignorance
of the EPO crowd (including "users of the system" who submitted
consultation papers), it may be difficult to get broad support for 3 and
4, but it is not so difficult to get support for points 1 and 2.  Point 2
is actually still in the newest examination guidelines of the EPO, and
point 1 is the principal concern of the 90000 signataries and 300
companies supporting the Eurolinux campaign and intuitively easy to grasp
for anyone who has the slightest idea of software.

The other points can be seen as inevitable consequences of point 1, if
people want a coherent system. If point 1 is upheld, there is some hope
that lawcourts will find their way to a stable equilibrium based on points
1-4 even if the EU directive does not explicitely stipulate that.

--
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation	    http://swpat.ffii.org/
90000 signatures against software patents       http://www.noepatents.org/







