Subject: Re: Examples needed against Soft Patents
From: Laurent GUERBY <laurent@guerby.net>
Date: Wed, 12 Jan 2005 21:02:42 +0100

On Wed, 2005-01-12 at 18:27 +0900, Stephen J. Turnbull wrote:
> According to the Contitution, you don't need to measure it; that is a
> "factive" statement, ie, it assumes that some non-infinite degree of
> IP will promote Progress.  The rest is up to the judgment[sic] of
> Congress.

If current thinking is that software patents do not promote
progress, quite the contrary, then the Supreme Court is likely
to censor Congress. The same reasoning has already been
followed by the Supreme Court (eg: "cruel" stuff, if social
consensus change).

> 
>     Laurent> I see no difference between Napoleon and common law here.
> 
> The juridical extension of past practice wrt patents to software
> patents probably could not be accomplished in France; it would require
> legislation.  Bernard, do you have a comment?

We have the exact same juridical extension in France as everywhere else
on IP issues where legislators don't want to do anything and when you
ask it's "complex" so best left to IP lawyers... (remember that on IP,
it's mostly an European Council/Parliament game, national parliaments
are just translators and cannot really change the rules).

>     Laurent> If the cost is low enough,
> 
> That's clearly contrary to the intent of the Constitution; the purpose
> is to promote Progress, which is clearly benefit-related, not
> cost-related.

Huh? I was talking about a definition to base legislation on, then of
course the question is wether having the said definition respected
promotes progress or not.

The U.S. constitution pose no restriction on the definitions the
legislator use, only on the intended/observed result.

Laurent