Re: [FYI] Vierzehntes Hauptgutachten der Monopolkommission zu SWPAT

[PILCH Hartmut <phm@a2e.de>]

> opinion for the period 2000/2001. Inter alia, they argue against
> "software patents" but the overall context of their statement seems
> to make clear that they did not even understand the problem. For

Anybody who doesn't speak EPO Newspeak or doesn't agree with Axel's
formalistic distortion of Art 52 EPC of course does not understand the
problem.

> example, they say that they are against the CEC proposal on computer-
> implemented inventions, arguing this proposal would "introduce
> software patents".

Indeed this is what the proposal would do.
Currently we have software patents without a legal basis (or, at best,
with a weak legal basis).

Software Patents are patents for non-inventions according to Art 52 EPC,
e.g. for rules of organisation and calculation which are dressed up in
claim language in a way that makes it easy for interested parties (such as
EPO) to confuse them with technical inventions.

This proposal would create a less dirty legal basis for software patents,
and that is its chief purpose.  This purpose is even stated explicitely in
the directive.

The proposal would remove the legal basis for not allowing software
patents.  "Harmonisation" in this context means precisely the removal of
this possibility which is strongly suggested by the current EPC.

The Monopolkommission.de text doesn't go very much into the details of
these legal wordgames, but its simplified approach is quite correct.
Dragging people into the details of legal wordgames is a ploy used by
patent lawyers to destroy discussions about what really matters: the
economics of software and the appropriate limits of patentability.

> This is, clearly, nonsense because of the Commission Draft is a rather
> conservative attempt to harmonise EU law on the basis of the current
> status of the EPC. Patents on computer- implemented inventions need
> not to be introduced, they are a genuine part of the EPC.

The national laws are already perfectly harmonised on the EPC.  The
"current status of the EPC" is the same as the status of 1978 (as
reflected in the EPO guidelines of 1978), but radically different from the
"current status of EPO caselaw".

When much of a person's life plan is built on a shaky foundation, this
person will often fall in love with a lie that makes his life plan look
more solid.  This is what we call Lebensluege (life lie) in German.
However simply calling black white and white black is too plain wrong even
for a life-lie.  AHH, please think of something better rather than
repeating this one over and over again at every turn.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/