Re: [Patents] Voice of patenting business

["Christian Beauprez" <beauprez@beauprez.fsnet.co.uk>]

Dear Erik,

Thanks for your input on this. There is little doubt in my mind that running
means exactly what it says. What a lot of politicans and lawyers are relying
on is their understanding based on case law (that says a computer process
could be patentable)  rather than paying specific attention to statute which
is unusually clear in this area.

> Wednesday 21/4 I was in a short dialogue with the swedish ministry of
> justice on this and the official said (from the top of his head) that
> "Insofar as loading, displaying, running, transmission or storage" should
> be interpreted as "exemplarframställning", that is roughly "making a new
> copy", and does not mean the same thing as the commission definfition of a
> c.i.i. ("the performance of which"). We had no time to go into it deeply.

Well this is where the debate gets kafka-esque. When it get's to the point
that we have to argue that running a program is the same thing as performing
it on a computer , we can start to see where this all falls apart.

> Can it possibly mean something else than "what a computer does" of the
> commission c.i.i. definition?

No. This is just nonsense (IMHO) but people should always make their own
minds up. I hear that some are saying "but copyright is only the expression,
not the performance". The point here was to ensure that computer programs
were protected "by any means and in any form" as literary works under
copyright.

Legally they are depending on case law. This means that patent courts were
given a narrow question of whether a computer process could be patentable
under patent law doctrine. They found that it could (as a process) but they
didn't stop to question as to  how this process had already been defined,
nor the obligations that this bestowed on them- at least not in any of the
case law I have seen in the US system etc. How would affect the software
author's rights- many seem to think that copyright is some kind of flexible
protection that they can overwrite when asked about patentability- this is
not true. It is a protection regime in itself and part of that regime comes
with obligations.

. In terms of what a computer program is I urge people to point to the
dictionary.

"It is a series of instructions that a computer can interpret and execute."

Nothing more, nothing less.

When we talk about "performance" of the work (or a data process) therefore
it is synonymous with computer progam running. If it weren't then the
copyright directive would have been useless at covering the performance of a
work, arguably the most important thing that a computer program does. Of
course as you all pointed out to me a computer program can control part of a
greater "real" physical process that can be a true invention, but the
process of data-processing has always been and should always remain the
realm of the author.

> What was the intention of the legislator?

This is always open to infinite debate.I prefer just to focus on the wording
of the law itself. If lawyers were asked about intentions they would no
doubt try and find to say it was to guarantee "maximum IP rights for
inventors (even though they are copyright treaties!)" in any means shape or
form, but common sense tells us that a literary work cannot be an invention
and that an author's rights by necessity suffer when an inventor intrudes on
his territory.



Kindest Regards,

Christian