[Patents] RE: patents and free software

[Iglhaut, Eberhard eberhard.iglhaut@sap.com]

Some Comments to parts of the discussion by Virginie Barbet and 
Hartmut Pilch:

(...)
> This is an English translation of Hartmut Pilch's recent post titled
> "brevets et logiciel libres (version elaboree)" 
by John Tobey.
(...)
> But your argument is 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 in European creativity
> > and learn how to encourage competitive activity without dogma...

There are some prevailing conditions that are set by governments. I think 
that those of Europe should be made up in a way that supports European 
businesses and citizens, and not as big American companies want them to be.
Let's trust European creativity in the legal field, too.
In a competition it's generous to let the opposite choose the arms, but
you shouldn't wonder if you lose the fight. 

> Yes, there are some comments on our letter that ignore these criteria.
> But really, the enforcement of these criteria by the patent
> authorities is very unsatisfactory and unmeasurable.  They have not
> found a way to prevent the majority of software patents from being
> patents on trivialities, obvious to the programmer's way of thinking,
> but not to the more stringent requirements of the legal system.
> 
> > Algorithms, software, "ideas" that already exist or are obvious are
> > therefore not patentable, and patents granted on them would be void.

But they are NOT void in practice, because many people cannot afford to 
risk a lawsuit. 
So, if patents are really this important for the industry, why shouldn't
the government pay for the process of checking against prior art etc.?
(This is like the german patent system was in ancient times.)

> > Lastly, 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 EPO counts 13,000
> > patents granted for software.

Coming to principles: One of the original reasons for patents
is the goal of promoting the free (not in the sense of 'at no cost')
availability of information. In the field of software the current
patent practice does the opposite.
Consider where developers get their information: from patent publications??
Another point ist the time line: AFAIK, patents must be released after
20 years. I heard "One year is seven internet years". So shouldn't be the 
time frame different for software?

> For universities, it is normal to publish the results of research so
> that everyone may profit from them.

Even scientists get their information mainly from journals and not from 
patent publications. This system works fine without patents. You usually
can't publish something trivial. But you can get a patent for it.

> No, Europe has many small small companies that are very advanced in
> their fields.  And these companies feel threatened by an
> American-style patent system.  cf http://www.freepatents.org/pr1.html
> 
> > Isn't it preferable to enter the game of competition on equal terms?
> > It has been proven that innovation comes much more from new
> > companies than from well-established companies.

Again: Who sets those "equal terms"? And whos terms? Europe should
have an own position. Then one could start negotiating.

> Perhaps.  But innovation is not a scarce resource in the field of
> software.  It is in most cases an everyday activity.  In these cases,
> patents serve only to hinder competition.

There is a difference of innovation and inventiveness. A patent should
only be given if there is a strong "WHOW!!"-effect to an expert in the
field. Sadly, that's not case.

(...)
> No, it does not hold those rights but it is a collective agency that
> defends those rights.
> 
> There are many agencies of that sort. We might also need such a
> collective agency for the interests of groups threatened by the patent
> system.

Strongly agree. It could help in reducing the gap between law and
practice. And it should be financially empowered by those many small
companies that are interested in or affected by patents. If it's not
possible to change the European patent policy, such an agency
should get own patents and use it. This agency should be an European
or an international one. 

Gruß,
Eberhard Iglhaut 
e Punkt iglhaut bei gmx Punkt net