Re: [Patents] about SWpat .. in French

[Xavi Drudis Ferran <xdrudis@tinet.org>]

Well, I agree that law should serve society and not society serve law, 
but besides, I don't think what Bresse says is the law is actually it.
I'm no lawyer, but since he seems not to mind talking about what he 
does not know (since he can't tell software from hardware), I won't
refrain from talking about law. 

There are higher and lower laws, and the highest are about the ways 
to set lower laws. In democracies, like those of countries signing the 
EPC, only elected representatives decide on law, at least in code law systems,
and in those countries with case law systems (only UK?) I hope they do not 
delegate the function of their judges to the EPO either. 
Civil servants like those in the EPO are not allowed to decide on law, 
so it doesn't matter if they have granted 30000 or 3 million patents, 
the law signed by the representatives of the people is the same as it 
was before granting them. Pretending the EPO caselaw can change the EPC is 
a disservice to his beloved juridical principles. The fact that a law 
has been abused may be encouraging for some kind of lawyer who thinks 
he'll get away with abusing it more, but it is a weak basis for pretending
to serve the law by misrepresenting it. 

I think their juridical arguments must be as flawed as their economical,
political or technical considerations. I don't even think the whole
article deserves a critique, except maybe to help wite an
anti-swpat-FUD-FAQ. Fortunately, lawyers don't get to pass laws
(except when they have been voted to do so).



-- 
Xavi Drudis Ferran
xdrudis@tinet.org