Re: [Patents] You have rights.. Software Patents are Illegal

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

> More copyright nonsense:
>
> >Therefore proposals to extend patentability into data processing place
> >us in express violation of the WIPO Copyright Treaty, The Berne
> >Convention, The Software Copyright Directive and the TRIPS Treaty itself.
>
> NO, software patentability does not conflict with these treaties.  Start
> with Berne, which pretty much implies (but does not state clearly) that
> literary works are to be protected by each country's copyright laws, and
> in some case patent law (Berne talks about design patents, and is silent
> on utility patents, which is why it has to be redrafted since more and
> more art is being protected with utility patents around the world).
>

Hah! My goodness Greg how lucky your clients are to have you selflessly
pushing for the patenting of art- while simultaneuosly paying lip service to
"bad patents". I suppose next we will see paintings of flowers being
patented as a concept, but not "bad patents"! WIPO comments that this debate
was had  in the 70's and 80's and consensus decided  that computer programs
were best suited to copyright, while an action carried out by an apparatus
could be patentable. The problem is judicial misunderstanding of where the
boundaries lie.

 Berne says that any provisions for the protection of literary works cannot
be prejudicial to the author. As does WIPO, and TRIPS who define computer
programmers as authors and restate this obligation. It is impossible to
patent software in any shape or form without prejudicing the rights of the
author, whichever way we want to dress this up.

 > So saying software is literary under Berne means very little since it
> takes you back immediately to software copyright, which has been an
> intellectual disaster for thirty years.  Why?  Most national and regional
> copyright treaties quite clearly state that copyright protection only
> applies to expression - there is no copyright for ideas, processes, and
> methods (anything functional).
>

Nonsense. software has always been a functional  work and protected as such
(by any means and in any form) under copyright.
Digital performance is part of the expression of copyright. (otherwise how
would cds have copyright protection when they are played on a cd player or a
radio station? The sound produced by the process isn't copyrighted?)

I suppose that you are telling us that when they drafted copyright laws,
they didn't know that software was written to be executed- Please read the
treaties.

> And this is the problem.  Everytime courts have tried to separate idea
> and expression in software, they have either failed or added to the
> aspects of software that are explicitly uncopyrightable.  Most aspects
> of software are uncopyrightable in the United States due to various
> court decisions over the last twenty years.

There is no perfect boundary between expression and idea. But in copyright
law the expression of those ideas in a substantive sequence is what is
protected, and not the concepts themselves. This is far more preferable to
an over simplistic and litigatious patent system. Whereby 1 person owns an
entire concept that is nothing more than an idea.

 >Indeed, in one decision
> that seems most governing (Altai), the court lamented that they wished
> that all of this software IP stuff be thrown over into the patent world
> which is better suited for analyzing structure and functionality.
>

Then they should request a renegotation of the Treaties through a democratic
process. This is not within the powers of lawyers, it is for democracy  and
governments to decide.

> Arguing that software is literary as a political tactic was tried 30
> years ago in the United States (the nonsense CONTU commission) and
> failed miserably, leading in the years to follow of the switch over
> to software patents.

The only thing that has failed miserably is the extension of patent law into
software and areas of mere human "thinking". This is documented in the press
everyday- and indeed I have spoken to people who have been on the recieving
end of such ridiculous actions.
 Inventions in the sense of patent law have always (at least for most of the
sane world) meant physical products and processes  (they are state granted
monopolies ) , not intellectual creations that have been created through
reasoning. Go to the WIPO website- you will see that computer programs are
placed firmly in the 'intellectual' (copyright) property section and not the
'industrious' (patent) property section.. WIPO is hardly a communist fringe
organisation.

> While it will be amusing to see some of you go back 30 years in time
> for your arguments, I would prefer to watch "Back to the Future".
>

Here in Europe, software patents have always been illegal and still are. And
they should be in the US too, you signed the Treaties as well.
 You don't have to subscribe to this forum, or read what I have to say. Ask
any software author whether they would prefer to have your haywire patent
system rather than copyright for all it's faults. If you want to debate I'm
all ears, but don't simply make unsubstantiated criticisms and then fail to
respond to any points raised, only to repeat yourself later.

Chris