From phm@a2e.de  Sun Oct  7 14:48:43 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sun, 7 Oct 2001 15:48:43 +0200 (CEST)
Subject: [Patents] Re: top legal terrorists
In-Reply-To: <3BC05915.9EEDC1@timsi.com.pl>
Message-ID: <Pine.LNX.4.31.0110071511510.8656-100000@querty.oas.a2e.de>

On Sun, 7 Oct 2001, Jozef Halbersztadt wrote:

> > 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.

> It is very moderate stand. I would prefer more militant one.

It by no means excludes militant action.  It just shows where possible
room for compromise can be, in case anyone is interested in compromise.

If the above requirement (1) is touched, as it has been by the EPO
decisions of 1997 and their confirmation by Kober's new Guidelines, then
indeed a level of pain is reached that can be compared to the pain
inflicted on the USA on Sep 11.  But the fight against legal terrorism and
its patrons who are currently comfortably sitting in their offices in
Brussels and Munich may not be as easy as feelings in the first moments of
pain would like to have it.  It will require organisational skill and
perseverance.

> Therefore I think the right reaction is to appeal to European
> parliaments and governments to remove all three of them.

Indeed it is hard to imagine going on with Mr. Kober in office.

Although normally I would say that Mr. Grossenbacher, Prof. Strauss and a
whole series of people are just as guilty of "stealing with a further
property-creating effect" and plunging the European patent system into
disgrace, in this case Mr. Kober went further than the others and he did
so in a role that would have required more rather than less restraint. It
seems that he has completely identified himself with the project of
stealing the intellectual property of European programmers for the benefit
of his clientel, that it is impossible to go on with him.  Any future
reform of the EPO that would bring this organisation under public scrutiny
and make it more responsive to the needs of the general public seems
doomed to fail as long as a person like Mr. Kober is at the head of the
EPO. We should contact our politicians and see what we can do.

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






