[Patents] Re: BGH authorises claims to computer programs

[phm@a2e.de (PILCH Hartmut)]

> I'd suggest that personal attacks on individual judges should be avoided,
> especially in the case of someone like Klaus Mellulis who is better known
> for his caution and thoughtfulness on the issue of software patentability.
> Besides, the senate decides as a whole.

Maybe I should add another personal attack against the writer of these
lines, who is one of the authors of the EPO's T1173/97?  Indeed T1173/97
is confirmed and exceeded by this BGH decision.

The decision carries Melullis' handwriting (known from his other writings
and decisions), and it would hardly have been possible if he had seriously
opposed it.

So far Mr. Melullis' thoughtfulness, as seen in his 1998 article

        http://swpat.ffii.org/vreji/papri/grur-mellu98/

has been quite superficial.  It may be better than nothing or than some
texts written by other BGH judges such as

        http://swpat.ffii.org/vreji/papri/keuken00/

or EPO judges

        http://swpat.ffii.org/vreji/papri/jwip-schar98/

But the step taken now is more drastic than the previous ones, because it
touches directly on constitutional values like freedom of speech.
Moreover, there has been a more thourough discussion with strong legal
arguments advanced from the side of swpat opponents, including a series of
articles published in GRUR.  Even swpat proponents such as R. Nack have
pointed out contradictions in the BGH jurisdiction and warned that it
means completely unlimited patentability and creates unsurpassable legal
chaos

        http://swpat.ffii.org/vreji/papri/grur-nack99/

See references of more articles under

        http://swpat.ffii.org/stidi/korcu/indexen.html

The BPatG decision was very prudent.  It had little to do with the
question of "what is technical" but only with the understanding of
"computer program" and "as such".  The BPatG argumentation on this was
very clear and unconvoluted.  It provided an opportunity for Melullis
and his colleagues apply a brake to the automatism which they had
step by step unleashed starting in 1992.  The failure to apply this
brake is anything but a sign of cautiousness.

The BGH is, more so than the EPO's technical boards of appeal, part of the
German constitutional framework and therefore required to be prudent.  It
should, as pointed out eloquently in the Dispositionsprogramm decision,

        http://swpat.ffii.org/vreji/papri/bgh-dispo76/

and Kolle's interpretation thereof

        http://swpat.ffii.org/vreji/papri/grur-kolle77/

understand itself as a conservator rather than an innovator.  It is
normally not up to judges to set new rules.  But no matter how many judges
forget their role and give in to political considerations, what Melullis
did is illegal and will stay illegal.  Our state is no longer a state of
law, and our constitution gives us the right to resist.  The patent
system's ship is stearing into rough waters.  Melullis, Clelland and
others have helped to deprive it of its foundation of legitimacy, and the
ship is too unflexible to avoid the cliffs that are looming ahead.

-- 
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
95000 signatures against software patents       http://www.noepatents.org/