From phm@a2e.de  Sun Oct  8 21:11:09 2000
Date: Sun, 8 Oct 2000 23:11:09 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Patent system run for consumers or producers?

> Apparently this whole exchange reduces down to one issue, Hartmut's
> fourth criteria for patentability after novelty,obviousness,enablement.
> His fourth criteria is:
> 
>         technicity aka concreteness aka physical substance.

Very correct, except that is not my criterion but a criterion inherent in
the traditional patent system and officially recognised by the European
law and even by the EPO until today.
 
> I reject that criteria.  What all of these arguments come down to is
> that in prior times, in a mostly industrial society/economy, we had a
> patent system for protecting the mostly technical, concrete, physical
> inventions that dominated, inventions that were new ideas with very
> valuable economic rights associated.
> 
> We increasingly now have a service/information society/economy, where
> new ideas still have valuable economic rights associated, but where
> the ideas are not expressed "physically".

Real inventions are not mere expressions of ideas in some medium, but
solutions to a material problem based on new knowledge about the physical
world.

Today as in former times, both worlds existed:  that of physical
inventions and that of logical innovations.

The fact that you can today make a lot of money by monopolising immaterial
innovations doesn't mean that such monopolisation should be allowed.

Monopolising the immaterial sphere is just as harmful today as it was in
former times. 
 
> I am arguing to adapt the patent system (I don't have much regard for
> copyright, given its weakening by the courts) to protect new ideas,

Copyright is not about monopolising ideas.  Yet it works well to protect
commercial activity based on ideas.  And enough new good ideas are
generated as a by-product of this commercial activity (and of course also
of public non-commercial activity), and those who produce good ideas are
able to profit a lot from them through the means of copyright, business
secret, human capital etc.  Experience and economic studies show that
introducing patents into this field doesn't lead to more innovation.

> even new ideas that are not "physical".  Hartmut is arguing that we
> effectively get rid of the patent system and not adapt it to protect
> new ideas that are not "physical".

Greg seems to believe that the world of natural forces will eventually
become deterministically calculable and fully predictable by logical
models.  I don't believe that, and even if it was the case, this would be
in a very remote future.  The patent system would decline only very slowly
until then.  And why shouldn't it decline?  Did God create man in order to
make him serve the patent system, or was the patent system created in a
certain period of history to be of service to man?
 
> I completely disagree, and it is not a matter of proof or reliance on
> American or German court decisions.  It is a social choice, and I
> choose to adapt the patent system to more effectively recognize and
> protect new ideas, no matter how they are embodied.

Thank you for these very clear words.  Also for me, it is not a matter of
court decisions.
I choose to restrict the patent system to the world of real inventions
(i.e. solutions to material problems based on new empirical knowledge)
and keep the world of pure reason free from it.
And I am glad to find that European jurisprudence supports my choice.

We can now debate about the potential effects and merits/demerits of these
two choices.

> Look at the patents in all three fields "physical" fields: mechanical,
> chemical and electrical.  Increasingly they are becoming more and
> information/software oriented.  Increasingly then arguing to prohibit
> software patents is an argument to prohibit all patents.  One can
> rashly conclude that Hartmut is against not just software patents, but
> all patents, hiding behind this illdefined concept of something being
> "technical/concrete" or not.

Wrong, as said above. This is FUD, fearmongering apparently designed to
rally together patent lawyers to defend their vested interests even more
energetically. But it is nothing new.  The same fear has existed even in
the 1970s and was very well expressed in an article by Prof Karl Beier
which I have quoted here. It could be that the patent system may slowly
decline as natural forces are better and better modelled by man. That
would be great news and patent attorneys could proudly point to the
positive role that the patent system has played in making natural forces
better manipulatable by man. But such optimism strikes me as rather naive.
Cancer is unbeaten. Behaviours of chemical and biological compositions are
still largely unmodelled and unpredictable.  There is a long future for
the patent system in its legitimate borders.
 
> For example, there are certain forms of programmable gate array processors,
> where the structure of the processor is reconfigured from cycle to cycle
> by patterns loaded in from onchip memories to reconfigure the gate arrays.
> Are these patterns loaded in from the memories "hardware" or "software"?

According to what you say, they are logical.  But they could perhaps be
used to implement a real invention.  That must and can easily be
separated.

> Who cares?  

European patent law does. I do.

> It is both physical devices (gate arrays) and information being
> manipulated together and intimately - and drawing a line seems like
> trying to figure out how angels dance on the head of a pin.

The line is easy to draw and has important consequences for society.
Only someone who cares more about playing his patent game (which is
somewhat similar to the game of making angels dance on the head of a pin) 
will neglect this question.

> All I really
> care about is whether the gate array patterns are novel and unobvious and
> fully disclosed.  

All you care about is your patent game.

> If so, they get a patent, whether you call them hardware, software,
> physical, technicity, whatever.

No, if the solution is in the realm of pure reason, it should in principle
not get a patent.  Exceptions tolerable if proven to be useful for
promoting progress.  Which I find unlikely, given the fact that logical
inventions appear in abundance even without direct monetary incentives,
let alone immoral incentives based on excluding others from the public
sphere of pure reasoning.
 
> I am a betting man.  I will bet any amount of money that any argument
> based on Hartmut's technicity focus will fail in leading to any
> substantial change in patenting.  It is not a matter of right or wrong,
> but rather if enough companies will support such a view.  I bet they
> won't, and will bet a dinner in San Francisco against a dinner in
> Munich.

This bet is very hard to verify.

If we win, it will not be due to my technicity focus.  Nor if we lose.

The deciding factor is really the pain in the neck that people feel. How
it is put into theories is secondary.

An increasing awareness of a viable and well-founded delimiting theory
will certainly do more to help us than to harm us.

The fact that on the one hand you keep deriding this theory without being
able to offer a single valid counter-argument (such as would be a
borderline case where it doesn't work or an economic theory proving that
logical innovation benefits from property rights) seems to confirm once
more that there is some awesome power of truth in the BGH theory that I am
explaining here all the time.

As you relentlessly explain, truth alone doesn't cut it in this
world.  But I would be stupid if I'd let myself be seduced into letting
myself be deprived of the awsome weapon of truth.  Don't worry, we have
other weapons also.

-phm
 





