Re: [Patents] Software Patents: The Patent Trap

[PILCH Hartmut <phm@a2e.de>]

>   It is however quite true that the law does not have to mention
> economics when stated or applied (though penalties may be economically
> based).  But economics (and other issues) must taken into account
> when deciding what the law should be, and defining its perimeter of
> application.

Economics can even come in during interpretation of the law.
In fact the EPO decisions of 1998 to allow direct software claims
are based mainly on economic reasoning (teleological interpretation
of law).  They say that the packaged software industry has become
a very important and rich industry with great innovations and therefor
must benefit from patent protection, as it was the legislator's intention
that ...

This reasoning is of course invalid, because if the legislator had
intended this kind of extension to be possible, he would not have written
explicit exclusions into art 52 EPC.  Moreover the economic model of the
EPO judges is crude and just plain ridiculous.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/