That anti-patent pamphlet I mentioned

[xdrudis at tinet.org]

> > Thanks for pointing it out. Am I wrong in believing that 
> interpretation 
> > is bound by the text you interpret, even if you are the highest 
> board of
> > appeals of the sacrest institution?. 
> 
> Well, there is no reason why you have to agree with the Board.
> Feel free to disagree. They sometimes do issue incomprehensible
> decisions, or even decisions that are on the face quite wrong.
> But it's the same with the Supreme Court: if they say it's to
> be yes, you can disagree all you want, but at the end of the
> day it is still yes.
>

I think that is the most pragmatic (and therefore correct) way 
for a lawyer to think. But not for a citizen. Democracy rests on the 
capability of the citizens to question whether what their institutions 
say and do is right or not and then correcting them if it's wrong. 
Of course I can't correct them alone, but I can point the issue 
to fellow citizens and if we all agree, the system should be changed. 

To paraphrase you: I can disagree with the Supreme Court all I want, but
if we all disagree,at the end of the week, it will be no, and maybe 
someone else will sit in the Supreme Court. 
 
> What I am trying to say is that if you argue it is illegal,
> your opponents can easily score points by saying the BoA has
> said it's not illegal, and they are appointed by the EPC to
> make such interpretations. Just like with the Supreme Court.
> If you say "it's illegal" and the SC has said it's legal,
> the debate is much easier for those supporting legality.
> 

I understand you can be harder to attack by saying it is 
undesirable, it is wrong or even it is perverse, and not saying 
it is illegal. But being illegal is also a point, and I think 
we should use it. Those institutions granting software patents 
are not legitimated by the stablished law, they are only 
legitimated by their own interpretation of the law. For me 
there's a big difference. Specially when their interpretation 
simply does not make sense. 

In the Nov 7th hearing ini the European Parliament, there were 
two speakers from the EPO. One insisted what they did was not illegal. 
The other wellcome the harmonization of the law with the practice of the
EPO. In my book this means the pratice of the EPO is divergent with the 
current law. 

Speaking about legality here is part of the battle. Is claiming 
that you cannot allow the law to be so twisted and reinterpreted 
that you need high experts to understand it (or not even them), 
people should be able to understand issues, at least with a resonable 
effort, because in the end of the day it is us who are prohibited 
from programming. So it is important when everybody except the 
legal circles (and then only part of them) think something is not 
legal.

And it is important to note that we are not advocating a change in law, 
but the pro-swpat camp is. We just want the current law to be observed
in a much more rational way than it is currently.

> > The EPO interpretation is
> > inconsistent because it pretends the exclusion of programs "for 
> computer> programs as such" affect 0 computer programs, because 
> depending on 
> > how you write your application, any computer program can be patented
> > (although one usually patents much more general things than computer
> > programs, and a program is covered by several patents). 
> 
> This is correct, virtually all computer programs can be
> covered by a patent claim if you can come up with some
> effect that "goes beyond the normal interaction between
> hardware and software". A computer program that computes

Nice phrase. In my first reading I thought it meant paranormal 
effects.

> the value of a stock portfolio or that manages an electronic
> auction is an example of an unpatentable program. You may
> want to read
> 
http://www.iusmentis.com/patents/businessmethods/epoexamples/EP1012764opposition.pdf
> for an example on how to attack software patents (this is
> an opposition my firm filed).
>

Queued for printing and later reading. 
 
> Correct. But keep the terminology right please. If you make
> mistakes with the simple stuff, the other side can point out
> those mistakes and argue that you don't know what you are 
> talking about so you shouldn't be taken seriously.
>

I am lost here. I don't see where my terminology is wrong. 
Can you correct my original text?. 

> Lots of national courts appear to be following the EPO's BoA.
> The German supreme court quite recently did (in their Speech 
> analysis program case) by deciding computer programs are 
> patentable in Germany.
> 

There is also the 17th senate that does not agree in that software 
is patentable, I believe. I've heard there are cases in one sense 
and another. But possibly we should come down to too much detail 
to find out. 

> > > RSA and the MPEG families of patents are examples of "software
> > > patents" that make a lot of money. And why would big firms with
> > > lots of lawyers and money pay large amounts of royalties ($2.50
> > > per device for MPEG, for example) if the patents could easily
> > > be declared invalid?
> > 
> > That's what I meant. Even software patents that cannot be 
> invalidated> through prior art (but should through subject matter) 
> are harmful. 
> 
> Well, I was trying to argue that the existence of these patents
> show that maybe it is not as obvious as you think that software
> patents are invalid. If a big firm has the money, why would they
> not simply let loose the lawyers to get those patents invalid
> instead of paying royalties? For $2.50 a device with 9 million
> devices you can do a lot of court cases.
> 

It depends on the case. Generally there is more than one patent 
you must fight. In other case big companies, with big pockets 
cross-license and don't pay so much, and in other case, I guess 
we'll never know all the possible arrangements outside courts 
than can be there. Possibly if you have a good enough case to 
invalidate it you can choose a very cheap license from the patent 
owner who does not want his patent invalidated or a much more expensive
lawsuit. 

Most software patents, though are not such a cash cow.