From phm@a2e.de  Sun Oct  8 09:52:26 2000
Date: Sun, 8 Oct 2000 11:52:26 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Re: your mail

> Hartmut Pilch's discussion of Karl Popper's philosphy of social engineering 
> has provoked me to 2 minutes' deep thought on the purpose of life in general 
> and patents in particular. Here's the "notobvious" theory of patents:
> 
> PATENTS ARE ABOUT MAKING MONEY
> 
> End of theory.

If that was all patents stand on, then the system would have no future.

> All the talk about "two worlds" (or was it three?) won't alter the fact that 
> patents are in the end a practical matter. The justification for their 
> existence is economic and the administration of the system is based on 
> practical considerations. They are, if you like, very anglo-saxon. Patents 
> will be scrapped tomorrow if governments decide today that they hinder 
> economic activity. That they don't tie in with somebody's philosophical 
> theory or epistemology or legal theory or world-view is irrelevant.

As I said before:

	value: benefit consumers by contracting with inventors
	==> judicial rule : grant patents for physical inventions

A system that has neither a serious social value nor a clear judicial rule
standing behind it won't last.
 
> And let's be honest, it's a world-view issue. Criticising Greg or Pierre 
> Breese because they makes money out of patents is a bit of a giveaway isn't 
> it?

If your argumentation has not better basis to stand on, then you must
accept criticism.
 
> That's not to say that there are no ethical issues involved, but they
> are about what is patented rather that whether patents should exist at
> all. I say this because like Greg I have noticed that Hartmut Pilch's
> arguments are ultimately about patents in general.

They are about restricting the patent system to the area in which it is
legitimate and workable.

> The anti-patent hysteria of groups like Greenpeace deflects attention
> from a real problem in how technically qualified people should handle
> moral issues. 

Greenpeace and the gene patent activists are upset that morally dubious
innovations are being rewarded by patents.

I always tell them: wrong, you should be glad that the patent system is
used to stilfe morally dubious innovation.

Of course I am not really sure whether the patent system stifles
innovation in the genetics area, but I wouldn't be surprised if it did.  
If a poisonous drug is patented, that doesn't mean that the patent system
is either promoting or stifling the development of the murdering business.
 
> I don't personally see any moral arguments against patenting software.

Our moral arguments are of a different nature.
They are only a second level of rules, the first being a utilitarian
consideration similar to your "anglo-saxon thinking"...

> When all the smoke clears all that is left is whether software
> developers can make more money if their stuff is patentable than if it
> isn't.

but different in one point:  society as a whole must benefit, and that
especially means that the consumers must benefit.  Software developpers
are secondary, but they usually support our cause.

> Hartmut Pilch has a habit of raising a moral argument against the EPO
> and accusing it of bending or breaking the law.

I'd call that a juridical argument.

> I advise him to take a look at legal textbooks. The positivist line he
> preaches is based on a naive view of lawmaking. It's been said that
> with laws, as with sausages, it is best not to look too closely at how
> they made. They arise not just from a perceived need but from a
> mixture of competing pressure groups and sheer human ignorance and
> incompetence. No law is ever clear or complete and the interpretation
> is - and always has been - a matter for the judges.

Judges are bound to the law and must find an interpretation that is
consistent and in line with the spirit, letter and initial practise of the
law.  Judges can only regulate blanks that were left open by the
legislator, but they can't change the rules.

> To repeat myself: the EPC was signed on behalf of the national
> governments by people who didn't fully understand what they were
> signing (as with lawmakers everywhere)

The Cour de Paris, BPatG, BGH and courts of Holland, Switzerland and
Austria had clear concepts at the time.

> and left it up to the EPO to decide what it meant. 

The EPO is not the highest organ of patent law but an examining body.
The highest patent courts are national courts, such as the BGH.

> To accuse the EPO of breaking the law because it has decided what
> Article 52 (2) means, to the apparent satisfaction of most of
> industry, is mere polemics.

The EPO has replaced clear and consistent juridical concepts of the BGH
with muddled law-violating doctrines designed to please "most of the
industry", i.e. those <5% of the software industry which are usually
labeled as the "users of the (patent) system".

> And whatever he may say, Hartmut Pilch's view is heavily coloured by
> the old German law and an understandable fear of lawbreaking judges.

By the German and European law that is still in vigour today and that
received a detailed consistent and workable interpretation in 1976-81,
which was then formulated in the examination guidelines of the German
Patent Office and also heavily influenced those of the EPO.
 
> >In GRUR 1977, p. 58ff, you can
> >find an article by Gert Kolle, who reported on the software question in
> >the German delegation at the EPC negotiations, which, although regretting
> >the fact that "from now on the way to patentability is blocked for
> >informaticiance once and for all", applauds the epistemological soundness
> >of the BGH theory and explains that it is a completely new interpretation
> >to what so far had only been habitual law (Gewohnheitsrecht
> 
> Would this by any chance be the brother of Oswald Kolle, the famous German 
> sexologist? (The correct answer is, yes). And would it be the same Kolle who 
> is said to be responsible for the Basic Proposal? (Again, yes). Somehow the 
> two facts don't seem completely unrelated.

Is Mr. Kolle actually (in part) responsible for the changes in doctrine
that led to the Basic Proposal's section on Art 52?
 
> Finally, I've yet to see a convincing reply to Greg's point on the 
> hardware/software mix:

Then please first say why the reply I already gave is not convincing to
you.
 
> >With these latest tools, I can describe a complex electromechanical
> >system at a high structural level, and then rely on a computer program
> >to automatically split the functionality into hardware and software
> >implementations. The computer can do this split many ways, depending
> >on how much hardware you want to use and how much software. To then
> >say that only the hardware aspects are patentable because they are
> >hardware, while the software aspects are unpatentable because they are
> >software (where the hardware and software are novel and unobvious), is
> >inequitable and illogical, and impossible to codify in a body of law
> >defendable in front of any rational court.
> 
> This is not a theoretical argument - ask Nokia or Motorola. It's also the 
> argument that persuaded directorate 2.2.1 of the EPO to change its mind on 
> software patents in the mid-80's.

In fact there were already two factions in the 1970s, but the weights
shifted in the 80s, and the winning faction proceeded to change the rules
without waiting for a change of the law.

I wouldn't find it worthwhile to ask the patent department of Nokia or
Motorola.  Or do you find predictable answers interesting?

It is clear that as we learn to model the physical world onto logical
models, the number of real inventions decreases, because everything
becomes a matter of calculation.

It is also clear that if you allow calculations to be patented, you can
once again increase the patentable sphere ad infinitum.

So the question lay before the EPO and other patent offices whether they
opt to
- accept a gradual decrease of the number of patents
- accept an astronomic increase of the number of patents

Do you find predictable answers interesting?

-phm






