Re: [Patents] The politics of software over-protection -- moving forward..

[Erik Josefsson <erikjosefsson@telia.com>]

On Fri, 25 Apr 2003 13:24:33 -0400 (EDT)
Russell McOrmond <russell@flora.ca> wrote:

> On Fri, 25 Apr 2003, Hartmut Pilch wrote:
> 
> > For the US I'd also say that "computer programs are not patentable
> > inventions" as stated in Art 52 EPC and held true until the early
> > 80s almost everywhere, is still the right message.  There can be
> > other messages, but they are measured not by tactical arguments but
> > by whether you are able to transmit them to politicians.
> 
> We can argue that the court rulings that have suggested that computer 
> programs are patentable in the USA are lower courts and not parliament
> or the supreme court, but they are still courts -- and what they say
> holds until it is challenged in a higher court.

In Europe, we can not argue that this is not crap:

"4.2 In order to establish the scope of the exclusion from patentability
of programs for computers, it is necessary to determine the exact
meaning of the expression "as such". This may result in the
identification of those programs for computers which, as a result of not
being considered programs for computers as such, are open to
patentability." - EPO Technical Board of Appeal decision T 1173/97

http://www.european-patent-office.org/dg3/biblio/t971173ep1.htm

(dont ask me why the link to the complete document from where the quote
is is broken)

The constitutional conditions for the transfer of power from Sweden to
an intergovernmental institution (EPO) are violated as soon as the
institution (EPO) makes decisions that limits constitutional rights
of swedish citizens, that is - grants patents that would not have been
granted in Sweden (or grants patents that have been rejected by the
Supreme Supreme Administrative Court, see:
http://www.european-patent-office.org/dg3/pdf/t921002ex1.pdf)

But where do you go when that happens? To the King? It _cannot_ be
challenged in a higher court. As I was told by the Swedish Ministry of
Justice, it cannot even happen.

This gives the "computer programs are not patentable inventions"-message
a different context in the US and EU. The EPO is violating the very
basis of it's legality, while the US courts are doing their job as good
as they can.

> > More precisely: there are perhaps other good messages (e.g. "patents
> > are nowadays too broad/abstract" ), but as long as no negotiation is
> > taking place anywhere, you gain nothing by compromising on your
> > messages.  The prime value of any message at this stage is truth and
> > clarity.
> 
>   You may call it clarity of message, but I may call it putting all
>   your eggs in one basket.  This is not a war society can afford to
>   loose, even in the short term, so I think it is appropriate (and
>   possibly necessary)  to have battles happening on multiple fronts.

I know there are many battles that many people fight at different
EU levels. But the patent system is the dragons head. It's the center of
power. EPO claims it is the legislator. The EPO building (payed by
patent fees) is almost as big as Pentagon. EPO would not even consider
a compromize. To whom would it speak? Who is worthy? This scilence, or
suppression of debate, is desperately filled by arguments from powerless
people, fighting meaningless battles.

//Erik