[Patents] Re: gouvernement 'buy up' patents or copyright

[Mark Shewmaker mark@primefactor.com]

On Sat, Jul 15, 2000 at 09:30:13PM +0200, PILCH Hartmut wrote:
> I have also read your license, but not studied the whole project
> intensively enough to really understand it.

I need to make my writings clearer.

> For some time now I have been thinking of writing two fairly simple
> licenses that don't require a pool organisation to be effective.
> 
> OPL: may be used without permission of the patent owner only in copyleft
> (GPL) software.  The "inventor" can otherwise continue to exploit his
> patent and can put it into various pools.  Many variants possible,
> including that labeled as "GPPL" in
> http://www.freepatents.org/shanghai/shanghai.pdf.
> 
> GPPL:
> true patentleft : public intellectual property that may *never* (subject
> to no negotation) be used in any system that uses any technology which
> cannot be freely reimplemented (i.e. used at least under GPL terms).

I don't understand the difference you are describing.  Are you saying
that the proposed "GPPL" license should restrict the patent owner from
incorporating his patent outside the terms of the proposed GPPL
license?

If so, I do not agree that a patent license should attempt to impose
such a restriction.  I think that's a bad idea for many reasons, but
given what you say below, I imagine that I'm simply misunderstanding you.

> Patent owners who want to retain some ability to bargain with their patent
> rights will prefer OPL.  Organisations like LPF, FFII etc who may want to
> systematically dry up all the patent assets that patent funds (and other
> pure lawyer companies who can't be deterred by an OPL pool) might own.
> 
> These licenses are independent of each other and the rest of the world,
> and the patent owner can always sell parts of his patent to others.

Pure lawyer companies can still attempt to use their patents as
weapons to stifle invention.  Presumably as the patent pools grow,
implementation of the lawyers' patented methods will noticeably start
to require more and more licenses from OPL'd patents, (as the lawyers'
patents become the more noticeable roadblocks to progress, those
holding patents on their incorporated techniques will likely find more
reason to bring up the issue.)  I would hope the OPL helps to make
destructive patent-wielding less of a money-making proposition.

> In a better patent system, the OPL/GPPL might entitle their owner to pay
> less patent fees.  In Germany patent fees are already now lowered if a
> patent is licensed non-exclusively for a low fee.
> 
> Actually I am drafting a petition letter on the Community Patent that
> calls for a radical patent reform, in which patent fees are abolished
> altogether, because they corrupt the patent offices, making them dependent
> on granting more patents:

I would not agree in principle with such a proposal, but would agree
with something only slightly different.  (BTW, I think that the issue
of how patent offices are funded is completely separate from the issue
of whether any type of patent should be valid.)

Whether or not the underlying justification for a patent system is the
promotion of progress, my thinking is that the costs required to
realize the short-term gains to the eventual patent-holder should be
borne by the would-be patent holder himself, and not the public at
large.  The public should not have to pay the costs for an application
that is denied.  The public should also not have to pay the costs for
an application that is accepted--if the invention can't even recoup
the costs of the patent application, I don't see how the public would
benefit for paying for such applications to be put through the system.

A change I would be in favor of, (and this is a US-specific change--I
don't know how necessary this sort of thing is in other countries),
would be for the Patent Offices' agents to not be given a built-in
bias one way or another.  Currently, they get credit for how many
applications they approve, and much less credit for how many
applications they ultimately reject, a system which is inherently
corruptible.  A (self-funded) Patent Office in which there is no
internal bias one way or another seems to me to be much less liable to
corruption.

Additionally, if an agent does not approve a patent, he can be forced
to justify his reasoning in court, but if he does approve a patent, he
cannot be forced to justify his reasoning in court.  (I am not sure
of the details here I have to admit.  My understanding is that an
applicant has various appeal procedures that eventually can force
an agent onto the stand, but once the patent is granted, that ethical
rules prohibit them from being forced or allowed to testify for
anything related to applications.)  In any event, the court time can
negatively affect the agent's patent-approval statistics, so that's
an additional bias to approve patents.

I think it's important for these sorts of processes to be made more
unbiased, and I think (hope) that this can be done without causing
patent offices to be funded from general government funds.

 -Mark Shewmaker
  mark@primefactor.com