Re: 5th Seminar of PL,DE National Groups of AIPPI

[PILCH Hartmut <phm@a2e.de>]

Dear Mr. Laszewski,

Having found your text

        http://www.aippi.de/seiten/pdf/Lazewski.pdf

and read it, I can't confirm Mr. Freischem's assertion that you praise
the US approach for providing "much better legal certainty".  Is
something like that written somewhere in the text?  Did I overlook
something?

Pointing out that the current EPO and CEC approach to "technical
contribution" provides no legal certainty is one thing.  Claiming that
the US approach, just by lacking this concept, provides "better legal
certainty", is a completely different matter.  Newell made this point
in 1986 in his reply to Chisum: one can perhaps point out that the
exclusion of algorithms from patentability creates legal insecurity,
but this does not mean that their inclusion creates legal security.
"The models are broken" in any case

        http://swpat.ffii.org/papers/newell86/

Thus there is a big leap between what you wrote and what Mr. Freischem
claimed you wrote.  Please correct me if I am wrong.

Your text is quite informative, especially concerning Poland, although
I would hope to have some more sources for double-checking.  But on
the whole, this is not the usual kind of primitive lobbying text, 
which has unfortunately become commonplace in respected organs of the
patent law community.

As far as german developments are concerned, I can see some errors in
the text.  It treats the BGH definition (somewhat mis-translated) of
technical invention as the clearest standard so far.  Which is of
course correct.  Unfortunately the text then blurs the distinction
between "controllable forces of nature" and phenomena of the human
mind (i.e. information), without which the BGH approach is
meaningless.  See Kolle 1977 on that.  You can hardly discuss the BGH
approach without discussing Kolle.  Tauchert, whom you seem to rely
on, is no replacement.  Even more importantly, like all approaches,
that of "controllable forces of nature as part of the problem
solution" must be understood through examples, such as
Dispositionsprogramm, Walzstabteilung etc.  Your assertion that at
some point of time in the 80s information became physical and
therefore now needs to be incorporated in the "forces of nature" not
only defeats the whole purpose of the BGH formula but also lacks a
reasoned foundation.  I am reminded of Gregorian Logics and of
Tauchert's often clueless assertions as well as vague references to
some scientists whose sensation headlines about convergence of mind
and matter are sensational precisely because they deviate from
the established mode of thinking and try to attract attention to
specific problems by highlighting this deviation.   Mentioning such
discussions is no replacement for a serious treatment of the 
traditional technical invention concept as developped by BGH/Kolle etc.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
130,000 signatures against software patents      http://www.noepatents.org/