Re: [Patents] Software patents: the case against

[Hartmut Pilch <phm@a2e.de>]

> > I have written a report on this issue that is available in both .pdf and
> > .html form. I know that many of you will be familiar with the arguments
> > already but I have tried to keep it as concise as possible.
>  
> If programs are to be "protected as literary works", that indeed should
> mean that the scope of "protection" is determined by copyright, and not by
> a cumulation of copyright with something else.  Copyright determines that
> ideas are excluded.  They can not therefore be included by means of
> patents.
> 
> I think the argument about "industrial application" is not quite tenable.
> Even if you reduce "industrial" to "commercial", as abusively done by EPO
> (it should imply that material goods are brought to the market), you still
> have a meaning of usefulness in there (functional vs esthetic, "causally
> overseeable result" from the technicity definition).  That is why
> comparing software with music may not be convincing to the reader if not
> done with care.  People intuitively feel the difference between functional
> and esthetic, while they may not grasp the difference between mind and
> matter so clearly.

It is also useful to point to instruction manuals.

Indeed in german patent law commentaries such as Benkard 1988 computer
programs were treated in analogy to instruction manuals.  Instruction
manuals are of course "literary works" according to the Berne Convention.
The term "literary" is very unfortunate for the debate, because it evokes
the notion of "esthetic vs functional" and makes people forget that
functional works are just as much subject to copyright as esthetic ones.
The pertinent border is really that of matter vs mind (Popper worlds 1 
vs 2-3), not subjective vs objective (2 vs 1,3).

-- 
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/