Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Thu, 30 Dec 2004 18:13:51 +0900

>>>>> "Russell" == Russell McOrmond <russell@flora.ca> writes:

    Russell>   a) Patent policy is *economic* public policy that
    Russell> exists to provide incentives for innovation.  Different
    Russell> subject matter exists in an entirely different economic
    Russell> context, and thus economic analysis and not legal
    Russell> analysis is needed to determine if a specific subject
    Russell> matter class should be patentable.

That's a Napoleanic Code view which simply isn't the way common-law
legal systems work.  AFAIK Canada's legal system owes far more to its
English (common-law) heritage than to its French (Napoleanic), and the
US is definitely English.

It certainly is true that a lot of economists and legal scholars have
pushed for giving more weight to the economics of these issues, but in
a common-law system, that is really the responsibility of the
legislature, which it may delegate to the regulators (here, the patent
offices)---but it must do so explicitly.

In the case of the US software patent, as I understand it, the USPTO
_opposed_ that extension, but was forced to swallow it by the courts,
based on technical (legal) interpretation of the wording of the
statutes.  (Of course, they then bitched, got a bigger budget, etc,
and now probably will defend that turf, but that's not how it
started.)

Right now there are two ways to stop software patents in the US:
legislation (where economic analysis can be brought to bear) and in
the courts (where economics is much more difficult to apply, and
arguably wrong).  But the courts are the fast track to avoiding a lot
of damage.

We really want legal arguments, too.

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
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