Re: [Patents] Re: Re: community patent

[James Heald <j.heald@ucl.ac.uk>]

Hartmut Pilch wrote:
> 
> > > "the acts allowed pursuant to Articles 5 and 6 of Directive 91/250/EEC
> > > on the legal protection of computer programs by copyright, in
> > > particular, by its provisions on decompilation and interoperability."
> 
> > I'd say this does not imply by itself that software would be patentable,
> > just that if it was, decompilation would not be forbidden (publishing
> > interoperable programs written from decompilation information maybe
> > would).
> 
> Right.
> 
> Also, decompilation would not be forbidden by means of patents anyway.
> 
> Patents are about use of products or processes, not about copying or
> deciphering texts.  The decompilation ban is a special extension to
> copyright in the field of software, and nobody would think of linking it
> to patents.
> 
> Or has anyone ever heard of decompilation being prosecuted on the basis of
> patents in the US or elsewhere?
> 
> Thus Art 6 as conceived by CEC/McCarthy and praised by "the industry" is
> imho nothing but a deception maneuver.

I think it's true that many people may have been misled by some of the
PR into thinking Art. 6 promises more than it actually does.

But with ever-growing use of Digital Rights/Restrictions Management
(DRM), I think that it's quite likely that people will try to patent DRM
techniques.

Art. 6 would allow in-house tools to be created (so long as they were
not made publicly available), in order to unlock such files for
decompilation, even if the DRM scrambling technique was patented.

However, for true interoperation we should be pushing the further Art 6a
proposed by ITRE in Am 15 (Itre):

    "Member States shall ensure that whenever the use of a patented
technique is needed for the sole purpose of ensuring conversion of the
conventions used in two different computer systems or network so as to
allow communication and exchange of data content between them, such use
is not considered to be a patent infringement" 

I have put this point to Graham Taylor by email, and he has promised to
get back to me.

> 
> Its real meaning is to ensure that there is no right to interoperability.
> If it wasn't for Art 6, lawcourts could construct such a right from
> constitutional principles or by analogy with copyright.  This is what CEC
> and even more so Arlene McCarthy and Graham Taylor want to prevent.

Hmmm.  I think this is unlikely. 

(Is there really a common-law right to interoperability ?)

If there had been no explicit Art. 6, I'm not at all convinced that
lawcourts would have deduced it.

Art. 6 is all right.  The real thing is to push for ITRE's Art 6a.