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

[Flemming Bjerke <flem@bjerke.dk>]

Søndag 09 maj 2004 18:27 wrote Gregory Aharonian about Re:  [Patents] You 
have 
rights.. Software Patents are Illegal:
> >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.

I think you are right. In WIPO and TRIPS, computer programs are not thought 
about as patentable. They are neither mentioned in the patent articles of 
TRIPS nor in PCT, but they are mentioned in the copyright rules of both 
treaties. (WTO's remarks in the overview to TRIPS have next to no legal 
weight.)

Consequently, there are simply no rules dealing with patenting of software. 
But, patents should be issued in all fields of technology. Whether software 
was technology or not, was not on the agenda when TRIPS and PCT were 
ratified. This leaves it definitely open whether software may be patented or 
not according to these treaties. 

Pilch has argued that from a philosofical (ontological) point of view, it is 
beyond doubt that sofware belongs to the realm of the mind, not to the realm 
of matter, and since technology belongs to the realm of matter, software is 
not technology and cannot be patented. I must admit that it is a strong 
argument (with a lot nuances and important references to jurisprudence I 
ignore here). But, I do not think it is absolutely convincing. For two 
reasons that mutually enforces each other: 

1. It seems quite evident that when a computer runs a program, it is 
technique.
2. The clear-cut distinction between mind and matter is strongly disputed 
within philosophy. I.e. the clear-cut distinction between mental methods and 
technology cannot be grounded in an absolutely valid clear-cut distinction 
between mind and matter.

For these two reasons, it is basically a political decision whether software 
should be regarded as technology or not, i.e. whether software is patentable 
or not patentable according to WIPO and TRIPS. (This means that the fight 
against software patents should be fought with political arguments rather 
than with philosophical arguments.)

Flemming Bjerke