RE: [Patents] Linus: kernel development no longer legally possible

[PILCH Hartmut <phm@a2e.de>]

> Narrowing claims by means of prior art is like playing russian roulette.
> You may be lucky in one case, but there is no reason why it should work,
> nor does it reflect justice or promote progress.

It should be said that if you add the filter of technical invention you
may well end up with a game that does promote progress, even if it does
not reflect justice.

Patents are, unlike copyright, not considered to be based in some moral
right to controlling one's individual creation, but are rather treated as
a means of promoting progress.  That distinction between copy-right as a
kind of moral right and the patent system as an instrument of economic
policy is found in law textbooks and patent law commentaries, at least
over here.

In order for the patent system to work as an instrument of economic
policy, it must

 (1) not collide with rights that derive from copyright,
     basic freedoms or other morally legitimated sources of rights
 (2) be equipped with all kinds of bells and whistles that in general
     reasonably limit the breadth of claims, even if they don't
     reflect any justice

Both of these deliverables of the patent system cannot be fulfilled
without the concept of technical invention.  If some people like Greg go
around claiming, against their own better knowledge, that the concept of
'technical invention' is not workable, then these people are in fact
advocating the abolition of the patent system.  A system that cannot
fulfil its deliverables must be abolished.  The patent system can fulfil
them.  Our only problem is that its representatives are intellectually
corrupt.  And that is bad enough: it may mean that for purely political
reasons we must nonetheless abolish a system which otherwise might
work reasonably well.

-- 
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/