[ILUG] ILUG sends s/w patents briefing document to Irish MEPs

[Michael Conry]

On Fri, 18 Mar 2005 13:18:22 +0000, David Golden <david.golden at unison.ie> wrote:
> On Friday 18 March 2005 09:39, Paul Jakma wrote:
> > I've no idea I'm afraid how it works. I'd be sceptical that the
> > judiciary in, eg, Germany has absolutely no interpretative role.
> >
> 
> Well,  AFAIK it's much easier to argue against earlier decisions.
> According to that fount of reliable knowledge ;-) Wikipedia, indeed
> germans do tend to consider a form of precedent in a fashion similar to
> america, but they also _don't_ consider it binding over what laws
> actually say (AFAIK, here and in England,  laws ARE what the case law
> says, written "laws" are merely "statutes", or something like that.):
I'm not a lawyer, but I'm pretty confident when I say that in
Ireland/UK/USA/Australia and other common-law states, what a judge
says is not "binding over what a law actually says".  Government makes
law, courts interpret laws, and where there is no law the judiciary
can itself make law (although this is not ideal and is not what the
judiciary want to be involved in, hence calls from judiciary to
government to introduce legislation in relation to various matters). 
At a later stage, the legislature can introduce laws that completely
replace old laws (whatever the source), and a judge cannot prevent
this (unless the changes are unconstitutional).  If a law turns out to
be unconstitutional, then a judge can overturn it, but really all the
judge is doing is acting as an interpreter (both of the law, the
constitution, and of their conflict).

And in fact, judgements abroad do have some value as precedent here. 
A lot of Irish law shares common heritage with UK law, and judgements
from UK courts may be consulted (non-bindingly) by Irish judges in
forming opinions when the same laws are involved in Irish courts. 
Equally, it may be the case (I don't know) that a German court's
interpretation of a piece of EU legislation or regulation or what-not
would be taken into account by an Irish court when considering similar
issues.

The legal system is supposed to be consistent, and like many
professions judges/lawyers have a lot of professional loyalty,  so in
every jurisdiction a judge will be slow to overturn another judges
interpretation.

> > - that they be worded very very specifically and in detail
> >

> Heh, well that'd be nice (and not just for software patents). But
> patent lawyers acting for patent applicants seem to pride themselves
> on making patents both as obscure and as general as possible, and do it
> as a full-time job.  Dunno how you could stop that.
That's the job of the patent office.  I've been over to the UK Patent
Office, and talked to the people there about their work.  They
presented a picture of an adversarial system.  The patent-attorney
presents the most general patent possible, making the most claims
possible.  This is because such a patent will be most valuable to
their client.  The patent examiner then assesses whether the claims
are valid, and if the descriptions are suitably concrete, since the
state wants to grant the most narrow monopoly possible.  The examiner
then sends a critique back to the attorney and inventor who then
prepare a revised draft and resubmit it. The examiner looks at how the
criticisms have been met and may sent it back again, or accept it.  If
they are having difficulty reaching agreement, then they'll have a
face to face meeting and try to hammer out the last few details.

How it works in practice, I don't know.  I suspect it works pretty
well for traditional inventions given that there is little outcry
about the current system (or maybe people are just used to it).  It
would appear, from popular reporting, that the system is a bit broken
down in the US.  However, I don't have personal evidence for this.

Michael