Re: [Patents] technology definition amendments

[Bernhard Kaindl <bernhard.kaindl@gmx.de>]

On Thu, 3 Jul 2003, Carsten Svaneborg wrote:

> On Thursday 03 July 2003 01:12, Russell McOrmond wrote:
> >   I believe that each type of subject matter should have independant
> > economic analysis to determine how patenting would affect that matter.
> > Studies done on one type of subject matter simply cannot be assumed to
> > apply to another.
>
> I agree. I think the Bakels-Hugenholtz suggestion of creating a
> patent observatory is a reasonable thing, that would go in that
> direction.

Reasonable yes, but I also think it would be a two-sided sword
which does not need to work for a balance. It'll decide the way
it is composed and this would be a very important point.

If it would be composed of patent lawers, you can guess in
which direction it's decisions will go.

I'm not sure what is best, at least in the US a court with
this role became an integral part of the patent system,
and this would have to be avoided, but I don't know how
exaclty it must be constructed to prevent it.

This section in a Eurolinux Letter reflects my thoughts about it:

http://www.eurolinux.org/news/cpat01B/index.en.html#juris

<cut-n-paste>

Independence of Jurisdiction and Legislation

As with national patents, Community Patent jurisdiction should not be handled
by patent offices but by independent courts.

Given that the European Community is currently not a full-fledged democratic
state with a reliable balance of powers, restraint should be exercised with
regard to creating a central European Patent Court. Even in a democratic 
nation
state like the USA, the creation of a central high patent court (CAFC) in the
early 80s marked a turning point from a balanced patent system to an
uncontrolled vicious circle of patent inflation.

Especially as far the limits of patentability (invention concept) and other
questions with constitutional implications are concerned, balance rather than
centralisation of judicial power is needed. Regional diversity can function as
a corrective. Establishing a separate system of administrative jurisdiction
over patent offices, in which public freedom interests are given a voice, 
could
also help. Any divergences of doctrine that develop can be addressed by
legislation from time to time.

</cut-n-paste>

Bernhard

PS: I also think a completely different patent system might be worthwile:
Polluter Pays Principle instead of Examination Bureaucracy
http://www.eurolinux.org/news/cpat01B/index.en.html#inval
(Hartmut just referred to it)

Don't get me wrong, I'm not sure if it's possible to introduce this
idea into the directive now, but I think it is a valid idea which
could be added to the picture.

PPS: There are some nice Recordings which I think are very interesting:

Speech of Brian Kahin(from the US, we can learn from their experiance):
ftp://gorgias.philo.at/mp3/Kahin_1.mp3
ftp://gorgias.philo.at/mp3/Kahin_2.mp3

Discussion with Brian Kahin and Reinier Bakels:
ftp://gorgias.philo.at/mp3/Patente.mp3

>
> Currently patentpractice is precedence based, and hence completely
> devoid any relation to the way the granted patents works in real life,
> e.g. we did this yesterday so we do the same today, irregardless of
> society gets any extra innovation out of granting these software
> function monopolies.
>
> It is necessary to create a feedback control loop for patentpractice,
> such that practice is always rationalised in socio-economic terms.
> And this requires an independent monitoring unit.
>
> --
>   Mvh. Carsten Svaneborg
>