From spam@john-edwin-tobey.org Tue, 7 Sep 1999 03:25:52 -0400 (EDT)
Date: Tue, 7 Sep 1999 03:25:52 -0400 (EDT)
From: John Tobey spam@john-edwin-tobey.org
Subject: [Patents] Re: [Patents] Re: [Patents] avocats du brevet logiciel s'opposent a notre lettre

It's easier for a French speaker to read Spanish because Spanish
spelling is saner than French, IMHO.

(Pardon the badness of my translation, I don't make it up to Quebec
often enough ;-)

(Also pardon me for doing only 30% of it, but I must go to bed...)

Sun, 5 Sep 1999 16:08:40 +0200 (CEST)
PILCH Hartmut phm@a2e.de
[Patents] brevets et logiciel libres (version elaboree)

patents and free software (extended version)

office@breese.fr (Virginie BARBET ) wrote:

> I do not agree with the arguments set forth.  The anti-Americanism
> makes me laugh: the free model seems to me to have brought profit to
> the American company Red Hat, which has gone public thanks to the
> navet of the developers who let themselves be seduced by the idea of
> freedom.

Red Hat's success in the market shows that one can run a large company
completely without intellectual property.  Do you think that Intel is
naive?  They invested in Red Hat!

Besides, the value of free software to society is independent of the
sucess of the companies that represent it in the market.  These
companies are not the principal force behind free software, but they
profit from it.

> I also noticed that most of the signers came from public research
> institutions, funded by our taxes, and therefore lacking the concern
> for profitability of a commercial enterprise.

I see that many companies, not just Red Hat, but also proprietary
software companies, profit from the existence of free software, and,
more generally, from the existence of a public and open information
infrastructure, and, of course, from an infrastructure of culture,
civilization, education, etc.  It is false to say that these
infrastructures are funded "by our taxes".  One could as rightly say
that private profit is made possible "by our public sector".

> It is easy to give to the public domain that which is paid for by the
> citizens, and which they would normally own (cf. the rulings[?]
> concerning inventions and software created by public employees, even
> outside of their working hours).  At best, the free model looks very
> much like a booby trap, in which the consequence, if one were to
> follow its proposals, would be a greater difficulty for creative
> European companies to find their place in the global market.

Even if your arguments are valid, they are too simplistic.  Businesses
are not everything.  The prosperity of the information industry does
not depend solely on software companies.

But your arguments are not in line with the reality of most European
businesses.  These are small companies with 5-10 programmers who make
a good living from copyright and don't want to get themselves sued by
big corporations capable of maintaining legal teams and patent
departments.

> Let's not get hung up about this, let's trust European creativity and
> learn how to encourage competitive activity without dogmatism...

Good suggestion, but the dogmatism seems to be mostly on your side,
see below.


> From: jv@breese.fr (Julien VILLA )
> <comments>

> Most of the discussion on this list shows a great misunderstanding of
> the patent system.  A patent is only valid if the invetion is new and
> inventive.

... and, don't forget, has an industrial application.

Yes, there are some comments on our letter whose authors ignore these
criteria.  But really, the enforcement of these criteria by the patent
authorites is very unsatisfactory and incalculable.  They have not
found a way to prevent the majority of software patents from being on
trivialities, obvious to the programmer's way of thinking, but not to
the more formalistic requirements of the legal system.

> Algorithms, software, "ideas" that already exist or are obvious are
> therefore not patentable, and the patents that may have been granted
> are void.  Furthermore, a patent does not prevent scientific
> exchanges, on the contrary.  It simply allows the inventor to control
> the profits that result from its use.

Control = prohibit others from using it.

Programming is a cultural activity, which could very well exist
without any form of organization as an industrial activity.

Industrial organization often produces monopolism and worse results.
Unfortunately, the current form of patent rights supports some
behaviors that aggravate these problems, such as exclusive licensing.
And a multitude of international treaties, which sovereign nations no
longer have the right to change, prohibit us from improving the patent
system and adapting it to the special needs of software.

> Finally, be aware that the principle of the patent as we know it came
> out of the French Revolution, and, contrary to what one reads
> sometimes, software is patentable in Europe.  The OEB counts 13,000
> patents granted for software.

Yes, but fortunately not yet as such.  One cannot yet, therefore, sue
a publisher for direct infringement.  And many of the software patents
granted now may be challenged under the current legal system.  This
system upholds our position, but practice, under the influence of the
proprietary lobby, has deviated from the law.

[to be continued]




