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Re: Strawmen and Urban Legends

From: Merijn de Weerd
Subject: Re: Strawmen and Urban Legends
Date: Thu, 28 Dec 2006 13:32:44 +0100
User-agent: slrn/ (FreeBSD)

On 2006-12-28, Rui Miguel Silva Seabra <> wrote:
> google were from her press releases!) -- advocate that a machine which
> contains software may be suitable for a patent if it satisfies all the
> criteria. Nevertheless, the software component can't be patented, as

I don't understand the practical difference between a patent on
a machine which contains a software component, and a patent on 
the software component of that machine. Why should you be able
to get the one but not the other?

Also doesn't this open a very big hole, in that people can now
distribute the component separately from the machine and leave it
up to the end user to assemble them? That's not legal anywhere else
in patent law (contributory/indirect infringement), why should it
be legal for software components?

> declared in most countries patent law (only a few, like the US, are in
> violation of TRIPS, at least according to my interpretation which sees
> software delegated to Berne Convention, and Berne Convention delegates
> it do Droit d'Auteur/Copyright).

TRIPS says copyright protection must be available for software
(the same kind as for literary works). But TRIPS does not say
that copyright must be the *only* protection mechanism for
software. For instance, I can claim trade secret protection
for my source code. That's covered by TRIPS article 39. If
article 10(1) were the sole means of protection, I couldn't
invoke TRIPS article 39 for software.


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