Re: [Patents] Greg: German semantics of "technical"

[PILCH Hartmut <phm@a2e.de>]

> >The implicit concept of "patentable invention" or "technical invention"
> >in Art 52 also can not be interpreted in any other way than the EPO
> >guidelines of 1978 and the BGH jurisdiction of the time did it.
>
> Why?  Why must laws, for example these patent laws, be based on judicial
> rulings made at one point in time?  Laws evolve.

Caselaw evolves, and law provides certain limits within which it may
evolve.  In certain anglosaxon countries we still have some relics of old
germanic ting law, i.e. a non-codified law system that is developped by
courts rather than by the legislature.  But this seems neither desirable
for Europe imho, nor is it what the EPC founders decided.

Art 52 poses certain limits within which caselaw was allowed to evolve.
The theory behind art 52 was published in law journals and court
decisions at the time and is easy to reconstruct.  So far no alternative
theory has been proposed that would allow a different and still consistent
and law-conformant interpretation of art 52 EPC.

> In 1978, there was no EC and WIPO copyright treaties banning copyright
> protection for ideas and processes, which is what the vast majority of
> software is, ideas and processes.

Yes, even software copyright was not firmly established at that time. But
it had already become clear that it was the way to go, see the
explanations near the end of the Dispositionsprogramm decision.

> In the 1970s, courts on both sides of the Atlantic were struggling
> with the IP nature of software.  If you read the decisions of the past
> thirty years, you will see courts having more success adapting patent
> laws to protect software, and having little success adapting
> copyright.

There goes the robot again.  We have discussed this so many times.
Why doesn't someone write a Greg FAQ  for

        http://swpat.ffii.org/vreji/gasnu/aharonian/

Sorry that I am losing patience.

> In the last thirty years, software has become much more of an
> industry, much more an engineering process, and much more
> indistinguishable from the research, development, timing, marketing
> and distribution of hardware.

This doesn't become more true by repetition.
Both you and Bolkestein and the many other patent movement activists
who repeat these slogans have never provided any serious analysis or
data to corroborate this propaganda.  It seems to be no more than a
belief statement that follows from the wish to make software patentable.
It has been thouroughly discussed and repudiated in the 1970s in Europe,
and even since then no new arguments came from the other side.

The only evidence that did seem to support this view was the rise of
shrink-wrap, copylock and software that, for marketing purposes, was
dressed up as a kind of hardware.  It was wishful thinking of software
makers that software could be turned into a material product, and some
patent lawyers welcomed that ideology.  Bolkestein's people still have
nothing else than this unenlightened hype from the 80s to offer in support
of their directive proposal.  Even if this hype was true, it wouldn't
offer a reason for caselaw to "evolve", as has been said clearly by
law articles and textbooks such as Kolle 1977 and Krasser 1986.  It would
at best have provided a reason to discuss about changing the law of 1973.

> if these 1970s decisions were so brilliant and worthy of worship, you
> wouldn´t have the same courts thirty years later being so
> intellectually dishonest.

I don't worship any courts because of their court authority.

The BGH's 10th senate people are indeed dishonest, but the people in there
are different.  And at least the 17th senate of the Federal Patent Court
is trying its best to speak in logically straightforward and sane
language.

> In a sense, the US courts gave up trying to play these word games to
> ban software patents, saying that the only objective way to prohibit
> a software patent is on novelty/inventive-step/enabling-disclosure
> grounds, which if properly applied by the patent offices, would see
> the vast majority of issued software patents not issuing.

The US courts had only customary law as a support for their reasoning
against software patents (such as Benson v. Gottschalk).  Legal doctrine
gods like Donald Chisum found it very easy to argue against this customary
law in the 1980s.  Chisum's reasoning is however faulty.  He would have
had a much harder time arguing against Dispositionsprogramm and EPC 52.

Once the basic limit, that of physical vs logical, had been torn down,
there was indeed no longer any way to maintain any limit at all.

In Europe, the same happened because the EPO is uncontrolled and outside
any rule of law.  It was able to defie the written law and its
well-established common sense interpretations -- not only concerning art
52 but also art 54 and other articles.  The EPO is even a place where high
officials can inflict corporal injury on their subordinates and make them
go to hospital, possibly even kill them, without having to fear any
punishment, thanks to their guaranteed immunity.  This has happened before
in the EPO.  Violation of the law is routine in this organisation, and its
attitude toward law is a cynical one.  Europe had the better written law,
but the US have a better integration of their patent office into the legal
system.  So the result was about the same.

-- 
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/