From ddgray@armadce.demon.co.uk  Sun Oct  1 18:57:04 2000
Date: Sun, 01 Oct 2000 18:57:04 +0000
From: David D Gray ddgray@armadce.demon.co.uk
Subject: [Patents] Third Paradigm between Patent and Copyright

PILCH Hartmut wrote:
> 
> Please comment!
> 
> http://swpat.ffii.org/stidi/basti/indexen.html
> 
>      _________________________________________________________________
> 
> 
>               Third Paradigm between Patent and Copyright Law
> 
>      Some scientists and politicians have argued for a "Third Paradigm"
>       between patent and copyright law, i.e. for an specially tailored
>     exclusion right (ius sui generis) for abstract-logical innovations.
>       Others have warned against allowing any type of appropriation of
>     abstract-logical concepts: on the one hand side such property rights
>    would very often not compensate the really cost-intensive part of the
>     software innovation process, while on the other hand side generating
>       high public costs by limiting important freedoms. Many software
>      developpers and IT entrepreneurs consider software copyright to be
>       "quite sufficient" or even "perfectly tailored to the reality of
>      software innovation". Yet few would doubt that a "Third Paradigm"
>     could serve as a transitory solution for converting legacy software
>                patents into a universally acceptable status.
> 
> 
> Soft Patents for Harware Logics
> 
>    Innovative processes for whose implementation not more than a new
>    computer program running on known hardware is needed, could still be
>    monopolised in those cases, in which they do not run on a universal
>    computer. Thus, if a car maker does not choose to lay out his motor
>    control device for customer-side reprogramming (making it more costly
>    and less safe), he would probably prefer to pay moderate license fees
>    to a patent owner.
> 
> Logilege: Use Privilege for Abstract-Logical Innovations
> 
>    The owner of a logilege (logical innovation use privilege) discloses
>    an innovative abstract-logical method and enjoys exclusion rights on
>     1. application of the method for commercial purposes

Unacceptable. Violates Article 1 of the Open Source Definition. Those
formally, or informally, bound to a covenent that permits them the use
only of software that meets all the criteria of the OSD would still be
in the position of using the software in full compliance with that
understanding or not at all.


>     2. implementation of the method in property-restricted objects (e.g.
>        in proprietary software)
> 

Don't like it - but OK! Proprietary software developers can swim in a
cesspit of their own making.

>    for three years starting from the day of disclosure. Nobody may be
>    excluded from

Sorry but I don't quite understand. What happens after three years. Does
it revert fully to the public domain? -or are these rights then lost, if
so for how long?

>     1. the right to use the method for achieving interoperability
>     2. the right to publish the method in freely republishable
>        information works (e.g. free source code) with an appropriate
>        pointer to the usage restrictions
> 

I can't see the difference between theses two, other than semantics. In
sum:- you are free to _develop_ but are only restricted vis-a-vis usage?

>    The disclosed logilege description comprises a reference
>    implementation and a set of claims. The logilege description must
>    satisfy strict formal and material requirements so as to make it easy
>    for the public to access the description and test whether it meets the
>    requirements.
> 
>    The logilege enters into force on the day of its disclosure. There is
>    no examination procedure. The owner guarantees that claims are valid
>    by paying a deposit of 10000 EUR, which will be paid to the first
>    netizen who succeeds in proving the invalidity of the logilege. One
>    serious flaw, such as an inadmissible claim, suffices to invalidate
>    the whole logilege. Posterior narrowing of claims is not allowed.
> 
>    Logileges can be granted for those innovations which due to lack of
>    concreteness or physical substance (technicity) fall out of the
>    classical patent system. The lightweightedness of abstract-logical
>    innovations requires a fast and unbureuacratic procedure, while the
>    great public cost, that any privilege on abstract-logical innovations
>    is likely generate, demands a high degree of responsibility on the
>    part of the privilege owner.
>      _________________________________________________________________
> 
> 

I am suspicious of this. Although it has been slanted here in terms of
the swpat issue, it seems like an attempt to create proprietary
jurisdiction over `World 3' entities in Popper's sense. I think this
could develop in such a way as to be the final nail in the coffin of
Popper's Open Society. However, I suppose that is the worst case
scenario. A more realistic worry is this could ease the way for
insinuation of a criminal concept of `patent piracy'. As the case of the
DMCA has shown in the US, it is relatively easy to create a whole
criminal code for an area of IP once you clarify and simplify the
definitions. Bringing patents closer to copyright brings it closer to
the more onerous aspects of that concept.

Sincerely

DD Gray




