From phm@a2e.de  Sun Oct  8 18:51:16 2000
Date: Sun, 8 Oct 2000 20:51:16 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Patent system run for consumers or producers?

> >I would like to ask you what a (bad) software patents is, and
> >what differentiates it from a good one?
> 
> Simple, at least for US patent law.  It has to be novel (section 102
> of the US laws) in the sense that in no prior journal, conference,
> book, or other publicly available media, that someone else has
> disclosed the same idea prior to the filing of the patent application.

More than often nobody will have disclosed exactly the same idea. 
Thus novelty is a fuzzy criterion.
 
> Second, it has to be nonobvious (section 103) in the sense that using
> the same above sources, you can't find a couple of pieces of prior
> art that combined in an obvious way would anticipate the idea.

What kind of combination can the "man skilled in the art" be expected to
normally do?  This again is very arguable and the standard of patent
offices on this is very low.  At the EPO, very few cases fail on
"inventive step" (as they call non-obviousness here).
 
> Finally, you actually have to fully disclose the invention in the
> specification (section 112), so on my computer I can recreate in
> source code what you are trying to claim.

This already for a long time is not given.  Software patents usually don't
disclose source code and most don't even disclose everything that you need
to write proper source code yourself without engaging in further inventive
activity.  This is condoned by patent law articles who argue that doing
otherwise would require patent descriptions to be very large and tedious
to examine.  They say that reworkability is no longer a strict requirement
since the purpose of the patent system is not to help other people
reimplement a particular technique quickly but to document the state of
the art as a whole.

Also, even if the reworkability argument was taken seriously, it wouldn't
help eliminating painful patents.
 
> Same rules as for all other technologies.  And if the patent offices
> around the world actually had the resources to do these three checks,
> I suspect 80% of the issued software patents would be found invalid,
> if not more.  These 80% patents are the ones I refer to as BAD
> patents.

OK.
Now you have mentioned three fuzzy or only half-operational criteria.
I add one more criterion:
technicity aka concreteness aka phsyical substance.
This criterion 
(1) is less fuzzy and more workable than the ones you list
(2) eliminates software patents and other painful categories which are
    typically full of what you call "bad patents"
(3) is inherent in current European law
 
> The remaining patents would be narrow enough to allow people to
> financially exploit their little innovation while not creating an
> undue burden on anyone else, programmers or consumers.

This is in several ways propagandistic speech.

(1) you pretend that people cannot financially exploit their innovations
    today.  But any programmer knows that creative people are very well
    paid even without patents.
(2) there is no basis for your assertions that the "good patents" don't
    create an undue burden.  Even physical patents create a burden.  But
    the burden of your "good patents" is undue because
    (a) they can be obtained for ideas that 1000 people may have at the
        same time and that take 1 hour to think out and 1 year to
        implement and that lots of people would have come up with just as
	soon if	there hadn't been a patent system
    (b) even if they are really good ideas, the price to be paid by
	the public in terms of unfreedom, non-interoperability etc may
	be an undue burden

> In such a world, there would be few if any complaints about software
> patents.

There would certainly be some less complaints.
But your world is unrealistic anyway, because 

(1) you are demanding improvements that normally motivated patent 
    office clerks aren't willing or capable of making.
(2) you are not providing an incentive to motivate patent offices.
    Instead you are campaigning to let them become richer and more
    powerful by retaining the monopoly both on granting patents and
    on collecting fees in return for granting patents.

> In fact, in such world, we would have a better basis to argue if
> there is a logical difference between a new hardware idea and a
> new software idea in terms of orginality, impact on the industry,
> hardware/software equivalence, etc.

This may be true.
But the basis is good enough already.
Bad patents on physical ideas are somewat less frequent and even when they
occur they cause less pain.
 
> But as I have argued for the last seven years, their is no really
> convincing a-priori argument why software should not be patentable
> while hardware should be patentable.  So let's clean up the patent
> examination systems first, get rid of much of the crappy patents
> that issue, and then argue philosophy.

In other words 
- lets postpone the basic question of a workable non-fuzzy
  limitation of the patent system ad infinitum and first engage in a Don
  Qixote type struggle against a bureaucracy which we first provide with
  all the necessary power and incentives to provide bad patents.
- lets force programmers and citiziens to sacrifice there freedoms so
  that we may play better our game
 
> Look, I have a degree in Physics, and a degree in Computer Science.
> I fully understand the nature of the physical and of the logical.
> I build devices - I build software.  Yet, I still see no reason to
> differentiate between the two when it comes to patenting.  

I would have liked it if you responded to my proposals of differentiating.
The reasons are
- it is feasible, with less fuzziness than your distinctions
- it eliminates pain
- it is well founded in the tradition of patent law 
- it is mandated by the patent law currently in force in Europe

> Read Stallman's writings?

We recommended Stallman as a source for those who want to learn about the
pain of proprietariness in software.  You seem to be ignoring these pains,
which makes me doubt somewhat whether you are today still the technician
that you may have been before you took up the patent busting business.
To revive your memories, we recommended Stallman's texts.  

> Again, as I have said before, I would rather read Turing, Post, Godel
> and Church, who quite powerfully and logically argue that the
> "physical" nature of something is for the most part irrelevant.

These writers didn't debate our question.  And we all agree that software
abstracts from the physical nature.  Some of us also agree that the patent
system should become less and less relevant as physical nature is becoming
less and less relevant.  This is what the battle is really about.

> Given any new algorithm, it is irrelevant to understanding its nature,
> novelty, utility, etc. because of whether or not is implemented in
> hardware, software, an optical computer, a DNA computer, a quantum
> computer.  If you are going to allow the patenting of some of these
> forms of expression, you have to allow the patenting of all of these
> forms of expression and embodiment.

Non sequitur. 

(1) Patent law can be formulated so as discriminate between these, because
  it is not based on some natural right of a patentee to a monopoly but on
  a social contract aiming to benefit the public by promoting science and the
  useful arts.  Therefore it is not necessary that all innovators enjoy
  "equal rights".
(2) By using the physicality/technicality requirement, we can perfectly
  and non-fuzzily distinguish what should be patented and what not.
  This distinction can be handled by judges, while your distinctions
  (novelty, non-obviousness, reworkability) often can not.
 
> Harmut keeps on referring to the wisdom of German court decisions
> against software patents.  Insufficient.  I can just as easily to
> refer to the wisdom of American court decisions in favor of software
> patents.

I am talking about European law.  And the German court decisions of
1976-81 provide the most systematic and workable theoretical foundation
for this law that is so far available anywhere, as far as I know.
They also the most in-depth theory of technicity that anybody has
attempted.

You could of course try to argue that this theory is a dead end.  But you
have yet to do that.  Your co-design tool example can not in the least
refute the theory.

Knowing that you don't think very highly of the wisdom of American judges,
I would find it surprising that you quote them on the question of the
physicality/logicality borderline.

> Assuming both sets of courts are equally competent, how can I choose
> between the two?  I can't.

I am not treating any court as an authority just because it is a high
court.
All I am saying is that the technicity theory of the BGH 
- provides a sharp and viable criterion today just as 20 years ago
- is the most coherent and law-conforming interpretation of the
  currently valid European law  

> I present a good argument for software patents using hardware/software
> codesign. 

No, you don't.
Anything that is based on pure reason is not a technical invention
according to the BGH theory.
It is not the form of the object that matters but the content of the
claimed invention.

> Hartmut presents an argument against?  How can someone choose between
> the two?  They can't, at least easily.

My argument is in line with the current European law while yours isn't.
My argument allows to sort out the patents that are harmful to the economy
and painful to civil liberties, while yours doesn't.
 
> So theoretical attacks against software patents, assuming they are
> even valid, will not be won in the court of public opinion by
> resorting to the type of legal arguments Hartmut is making when he
> relies on the twenty year old (1976-1981) German court cases.

There are also newer court cases that support my argument, such as the
verdict of the BPatG (Federal Patent Court) of 2000-08-22

	http://swpat.ffii.org/vreji/papri/bpatg17w6998de.html

and the prominent commentaries of German patent law like that of Benkard
(I have the 1988 edition) say the same thing.

Moreover my arguments are not only juridical but also epistemological and
economical.

> And I point out that these decisions are twenty years old because in
> relying on them, I sense Hartmut has this kind of fixed view of
> judicial decisions.

I treat judicial decisions quite selectively.

There are of course intelligent judges.  Btw most of the judges at BPatG
(17th senate) and BGH (10th civil senate) are not lawyers but scientists
from the fields of physics, chemistry and the like.

There are also less intelligent judges or judges who have given in to a
constant psychological pressures from the patent offices and their
customers.

It may sound arrogant if I say "less intelligent".  But this judgement is
not merely based on my liking or disliking.  It is also based on the fact
that the law-bending judges have not succeeded in creating a coherent
system but only in creating a multiplicity of contradictory caselaw with
basic terminology undefined, while the BGH judges of 1976-81 succeeded in
creating definitions of high value that are often quoted through the 80s
and 90s until today, see recent BPatG decision pointed to above.

> We see this all the time in America - conservatives demanding that
> judges not waiver from the constitutional intent of the Founding
> Fathers of the US in the mid 1700s.

Of course you can create different laws, if you do it intelligently.  But
there is no justification for a judge to deviate from the existing
law.  In a democracy, legislation is the work of the parliament, not of
the judges.  Creating theories to systematise the law, as did the BGH in
1976-81, is perfectly valid.  But changing the rules of the law isn't. 

> I am sorry, but I reject such strict adherence for two reasons.  
> First, the Founding Fathers were flawed in their actions, such as
> treating African Americans as sub-white, and denying the right of
> women to vote. Second, laws are meant to evolve to make better good
> laws.

Evolve by means of legislation.
 
> The world of computing, the world of physicality, is much changed
> from the 1976-1981 time period.  The world has become more of an
> idea economy, where increasingly the new idea is all that counts
> (the embodiments assigned to big factories and consultants to deal
> with).  The world has more profound technologies (DNA computers,
> hardware/software codesign tools, etc).  Maybe it is time to reexamine
> these twenty year old German court cases to see if their logic stills
> hold up.

Yes, maybe. 
But this should be done by parliaments, not by judges or, even worse,
patent examination bodies.
My preliminary examination shows that the ideas of 1976-81 are very good
for today's economy.
Even if you call it an "idea economy", that does not mean that ideas must
be treated as property.  Experience and economic studies suggest that
progress of science and the useful arts is better served if ideas stay
free and only implementations are owned. 
 
> But treating them as gospel is a good way to lose your battle against
> software patents.  And using the word "suffer" insults all of the
> people around the world who truly are suffering. Programmers who
> complain about "suffering" because of BAD software patents are a bunch
> of lazy crybabies who probably aren't writing interesting software
> anyway.

in other words, Greg Aharonian says 
  - Richard Stallman is a lazy crybaby.
  - Linus Torvalds is a lazy crybaby.
  - the Freetype people are a lazy crybabies
  - the MySQL people are lazy crybabies
  - 200 companies supporting the Eurolinux petition consist of lazy
    crybabies

> Someone has a patent like LZW -
> alright, let's find another way to compress and then work to get
> everyone to adopt it.  That's a fun fight.  

It's not fun to have to access European patent descriptions hidden behind
LZW and then not be allowed to use LZW.

> But to cry about the Unisys patent because you are suffering and some
> German court says I am suffering?  I think not.  You will convince no
> serious powers that be to support your cause to get rid of software
> patents (which I think is a false cause anyway).
 
> Look, I disagree with Hartmut's and others goals to get rid of
> software patents.  But I can support his attempt to do so because
> it is a fun thing to argue over.  And my advice is this - don't use
> "suffer" and don't rely on those German court cases - to do so is
> strategically a losing proposition.  But that's my advice.

I asked for arguments to support your previous claims that

- the logicality-physicality borderline doesn't work
- unlimited patentability is good for promoting progress
- software patents are not causing any suffering

I failed to find anything to those points in your above statement. You
just reiterated your prejudices.  Too bad, because these questions pertain
to the foundations of both your and my work.  By leaving these things
unclear we risk misallocating our ressources and using our best time and
energy for warped fights which we will later not be able to look back on
with pride.

-phm





