[Patents] Re: Hypothetical Example

[Nick Fleming marmalade@x-stream.co.uk]

Ok, these are my final words on this subject,. (I think I've said enough 
already)

According to the TRIPs agreement, Computer Software is given
the right to general copyright protection.  (Articles 9.2, 10.1 and 11)
This means 
    1)    Protection under the Berne Convention as a literary work (e.g. 
source code)
    2)    The rights to allow / PREVENT public licence of these rights of the 
software.
    3)    50 Years (at least) of general legal protection. 

This is backed up by Article 52(2) of the Muchen (Munich) Convention,
which can be read as NOT allowing software to be patented
(I'll come back to this in a moment).

Patent Protection gives the owner of the patent:
    1)    20 years of exclusive rights, except in exceptional circumstances
           to use the invention in whatever commercial manner they see fit.
    2)   The right to demand a royalty for usage of the invention and more
         importantly the right to sue for willful infringement for lots of 
money.

Now,  The points I was making were fairly simple:

     1) Software patents, even for the simplest examples, can be shown to
         be harmful to innovation and the economy using the present legal 
system.

     2) The effect of a software patent, even those that may only constitute 
a small
     portion of the overall program, can have a huge impact on the way in 
which
     we all work and live our lives.

The problem comes I think from people assuming :

    1) There is always an "alternative algorithm". Ok, so I wasnt too clear 
on this.
        My apologies !. I still believe there may not be alternatives 
available and that
        the alternative algorithms may be inappropriate for your requirements.
        The point was that if we have software patents, as the U.S and Japan 
already do, 
        then you may not be able to write software without infringing on 
SOMEONE'S patent..  

     2) Open Source is a good idea. Yes it is, but there seems to be some 
misconception
     about how this applies to the real world when software patents are 
available. If you
     release the source code to the world, a competitor may patent it before 
you do, or a
    part of it - then sue you for infringement. First to invent does not get 
the rights,
    first to disclose (file) does unless the inventor can prove otherwise. 
Consider Suns
    NFS file system - guess who owns a patent on this ? Second example : JPEG 
is
    free and extremely useful - there are patents on improvements on this 
too. The
    original authors would have to program very carefully to avoid wilful 
infringement.
   For the example, I put my self in the position of a company who wanted to 
defend
   itself against legal attack - easiest solution ? Hide the source code.
   Ok ? 'Nuff Said.

    3) The belief that all you have to do is licence the technology and 
re-write it. In the
    real world, there are deadlines to meet, expenses to pay and mouths to 
feed - (cats,
    dogs, girlfriends etc..). Software takes time to write, it does not pop 
out of the air.
    Yes, it is possible to licence a patent "for no less than a reasonable 
royalty" but
    time constraints, budgets and available manpower mean that such software 
may
    be out of your reach. - Enough said on this to I think.

Ok, for those of you that think hiding the source code is a side issue, if 
patents are allowed
on software, without revoking its copyright status, you have the unusual 
position of
having something protected by both copyright and patent laws - as pointed out 
in the
EPO's green paper (End of section 4.2 I think). 

It means that if you have a software patent, you can do whatever you like 
with it.Sue
the competiton for wilful infringement, demand royalties and be able to 
withhold the
source code under copyright laws.

See the problem ? Under the existing laws, with software patents, my example 
would work
exactly as I described, and no amount of arguments would get you anywhere. 
You still end up
being given only what the patent holder wants you to have and you cant do a 
thing about it.

Currently the only real legal defense against this is (possibly) Article 
52(2) of the Muchen
(Munich?) Convention. It has been suggested (in the green paper no less) that 
this article
could be "deleted" in order to allow the patenting of software. I believe 
this is more or less the
approach the U.S. took in its efforts to harmonise and simplify there patent 
system, and
to comply with the TRIP's article (I forget the number..) which says that 
patents must
be allowed for all inventions - without discrimination. I think they forgot 
that software
is protected under copyright already. :-) Despite the hearings given in the 
US, it seems that
the importance of software and its role in society was more or less ignored 
in the end.

In case you are wondering: I am just one software developer, who started to 
look into
the legal side of things to be able to publish free software on the internet 
so that I
would not get any suprise legal letters through my door. I am not in anyway a 
legal
expert, but I am grateful if any of this has raised awareness of the problems 
surrounding
software patents. Thanks for listening.

My final words on software patents are as follows:

For the benefit of generations of future software development and innovation.
I submit that we should *NOT* delete Article 52(2) simply to allow
harmonisation of the Patent System with the US and Japan. I believe this is
harmful both socially and economically to everyone except
those with extensive patent portfolios. We should not implement a bad
idea everywhere just to have "harmonisation" for the few that can afford it.

Regards & Best Wishes.

Nick Fleming 24th August 1999.