Best opinion piece on open source and patents in a long time

Posted Nov 15, 2010 17:34 UTC (Mon) by Wol (subscriber, #4433)
In reply to: Best opinion piece on open source and patents in a long time by sorpigal
Parent article: Red Hat's Secret Patent Deal and the Fate of JBoss Developers (Gigaom)

Add to that, software patents are explicitly illegal AS SUCH in Europe, so saying "we can't defeat them" is stupid. All we need to do is convince the courts to apply *current* law, and software patents are dead.

And in the US, well while Gene Quinn seems impossible to convince, the fact is that software (certainly insofar as it exists as a "big number" on a storage media) IS MATHS, and as such software patents are illegal in the US too.

So if Florian is telling us not to try and persuade the courts to enforce the law AS IT CURRENTLY IS, then he really IS being defeatist. Point is, we don't HAVE to persuade the politicians, we just need to get the courts to enforce the law!

Cheers,
Wol

Best opinion piece on open source and patents in a long time

Posted Nov 15, 2010 17:41 UTC (Mon) by FlorianMueller (guest, #32048) [Link] (5 responses)

All we need to do is convince the courts to apply *current* law, and software patents are dead.

You are right in the sense that if the judges wanted, they could do away with software patents in Europe by interpreting the existing exclusion very broadly. As collateral damage they'd also do away with many other patents that way, but yes, they could if they wanted. But they don't want. You're not going to get them to want it. You'd need legislation. You need politicians. A number of defendants have tried to convince the courts and they've failed, such as in the German court case involving that XML generator patent.

Best opinion piece on open source and patents in a long time

Posted Nov 15, 2010 19:41 UTC (Mon) by linuxrocks123 (subscriber, #34648) [Link] (4 responses)

Yes, German courts have sometimes upheld software patents. However, as you probably know, there is no stare decisis in civil law countries, so this really doesn't matter too much for future work. This just means that attempts to convince German courts to apply the law as written have failed so far, and we need more work here. The EU, thanks to the efforts of many people including you, provides ample statutory support for excluding software patents in EU countries, but for civil law countries like Germany, the interpretation will always be uncertain, and the battle will be constant.

---linuxrocks123

Best opinion piece on open source and patents in a long time

Posted Nov 16, 2010 1:10 UTC (Tue) by wahern (subscriber, #37304) [Link] (3 responses)

Just because German courts don't have a doctrine of stare decisis doesn't mean they don't have precedent. In all Western legal systems the courts interpret the law (from whatever source), and in all Western legal systems consistency in interpretation is an expected characteristic.

Of what I know of the German legal system, while precedent isn't binding generally it's certainly more persuasive than in other legal regimes. German decisions tend to cite to more cases and authorities than, say, French decisions.

If you go back to Roman times the role of precedent is totally orthogonal to both civil and common law systems (it's more a myth than fact that continental civil law is more "Roman" than English common law). In Roman times if you had the same facts, you were supposed to have the same outcome. Precedent was binding. You did have a body of jurist-made law. Cases were recorded, cataloged, and distributed. The difference is that Roman jurists, especially before the Justinian Code, but even after, refused to devise abstract rules beyond the facts of canonical cases. (They contrasted themselves with the other extreme of the Greeks.) The Justinian Code let to a revolt among jurists because of this. Civil law and common law diverged differently along these lines. Civil law dropped the binding precedence, but focused heavily on very abstract doctrines. Common law kept precedence (or rather re-emphasized that latent character) and applied legal abstractions more moderately, preferring to stay more strongly rooted to factual patterns.

Also, neither is directly descended from general Roman law or the Justinian Code. Derivation came by way of certain practices of the Catholic Church rooted in Roman legal philosophy (contrasted with the honor-based systems of medieval Europe), and from the academic _exegeses_ made of the recently discovered Justinian Code. The Justinian Code was itself an exegesis and _codification_ of the large body of "common" Roman law, and was politically a centralization if not usurpation of judicial power by the emperor in the waning days of the empire.

Google Books has some very interesting 19th century literature on the development of the Roman and European legal systems. Not much of the basic scholarship has changed. Just read it like Wikipedia; be a critical reader and compare and contrast bold assertions with other authorities.

Best opinion piece on open source and patents in a long time

Posted Nov 16, 2010 5:22 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (2 responses)

There's no need to get into such detail. The answer is very simple -- see below -- and linuxrocks123 apparently just thinks that by using a term like stare decisis he can impress people and cover up the fact that he appears to know pretty much nothing about German law.

The answer is very simple actually: decisions taken by the Bundesgerichtshof (Federal Court of Law, the highest court in matters of civil and criminal law, and patent law is part of civil law) do bind on the lower courts, particularly if they are so called "Leitsatzurteile" (guideline decisions) in which the BGH emphasizes a certain principle (or more than one -- such as in the XML generator case).

Best opinion piece on open source and patents in a long time

Posted Nov 25, 2010 2:30 UTC (Thu) by linuxrocks123 (subscriber, #34648) [Link] (1 responses)

Yes, but the decision is not binding on itself, and since it's not a common law country they could reverse themselves without "looking bad". By contrast, while the US Supreme Court can reverse itself by virtue of the fact that no one can really stop them, this happens so rarely that decisions (even horribly reasoned ones such as Roe v. Wade) tend to live forever.

---linuxrocks123

Best opinion piece on open source and patents in a long time

Posted Nov 26, 2010 22:19 UTC (Fri) by linuxrocks123 (subscriber, #34648) [Link]

Also, you're probably wrong even about the decision being binding precedent on lower courts:

(From Wikipedia)
"Most civil law nations do not have the official doctrine of stare decisis and hence the rulings of the supreme court are usually not binding outside the immediate case in question. However, in practice, the precedent, or jurisprudence constante, expressed by those courts is often extremely strong."

So, yeah, it's precedent, but it's somewhere between advisory and binding, even on the lower courts.

---linuxrocks123