Re: [Patents] UK patent lawyer responses to GregNews on Technicity

[Hartmut Pilch <phm@a2e.de>]

>     You expect at least courts to act rationally and to adapt to changes
> in society. I must disappoint you. I have studied many decisions of
> the German Federal Patent Court and the German Supreme Court. They
> still stick to the technicality requirement - which is however interpreted
> in various ways (I am sure you are well aware of all the variations). It
> is really a word game. They do not use economic arguments. For the EPO,
> it is roughly similar. If they (occasionally) appear to become more
> inclined to grant S/W and B/M patents, the reasoning typically is not
> economically founded. They seem to stick to the old (German) paradigm of
> "Begriffsjurisprudenz" - which was abandoned nearly a century ago in
> other areas of law ... (the alternative is "Interessenjurisprudenz"
> which might be more easy to understand if you are not familiar with the
> German language).
 
I think here our otherwise fairly objective UK lawyer again glides into a 
typical patent lawyer FUD mode, perhaps encouraged by Greg's pretense of
"grounding" in ultra-modern science.

The recent articles of the presiding judge at the BGH patent senate, see
(and help translate if you can) excerpts at

        http://swpat.ffii.org/papers/melullis02/

are based on a combination of assessment of interests
(Interessenjurisprudenz) with interpretation of notions
(Begriffsjurisprudenz).  The term "technical invention" itself, in the
classical theory, is also based on such a combination.  See (and help
translate)  e.g.

        http://swpat.ffii.org/papers/krasser86/

I can't see how you can do otherwise.  After all, "interest jurisprudence"  
must also make sense of the wording of the law in a systematic way.  
Otherwise you might as well eliminate the written law and let all rules be
set in lawcourts, as is traditional (19th century?) practise in the UK.

You would need very strong "interest jurisprudence" arguments to justify
"contra legem jurisprudence" (going against the written law) such as that
of the EPO (especially Vicom, Sohei, IBM 1-2 and Pension Benefits).  The
EPO's TBA has tried to use economic arguments, but these completely ignore
the interests of citizens and industry and rely on wild assertions about
innovation, which themselves should be classified as "notional 
jurisprudence" at its worst.  In fact I think we can generalise that as 
soon as patent courts start talking about economic interests they 
tend to slide into notional jurisprudence.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/