[Patents] Re: [FYI] New Software Patent Law for Europe Looking Limited (fwd)

[halber@idea.net.pl (Jozef Halbersztadt)]

> 
> 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. The
process is far from conclusion.

The Commission can only produce a draft of the law for debate in the
European Parliament and in the member states. And it looks that they
ignored main body of the public opinion and created very unconfortable
situation for the Commission. In democracy it is a crime and a reason
to call for dismissals of Commissioner Bolkestein, Internal Market
Director-General Mogg and President Kobler. Nobody should doubt that
the recent supplementing of the EPO guidelines with "further technical
effect" is not contrary to the cooked in Brussels draft.

Therefore I think the right reaction is to appeal to European
parliaments and governments to remove all three of them. The arguments
for the Open Letter can be borrowed from Jean Paul Smets and Hartmut
Pilch paper.

The three ignored that:
1. high level national courts tend to enforce the original
interpretation of the EPC, that make doubts about legality of the EPO
current practice,
2. owners of patents tend not to use and enforce them because the risk
of having the patent voided by a national court is too high,
3. reports written from the economic perspective tend to conclude that
introduction of patent to the software economy would probably lead to
less innovation and competition,
4. overwhelming majority of those who care to speak, almost all
software companies with the noticeable exception top management of
large corporations are hostile to the EC/EPO proposals,
5. exist alternative scenarios:
(a) explicit boundaries on rights derivable from patents,
(b) limitations on what can be claimed,
(c) sui generis rights.

Jozef Halbersztadt