[Patents] Third Paradigm between Patent and Copyright

[PILCH Hartmut phm@a2e.de]

> > 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.

Indeed it is intended to mean that once an algorithm is logileged, any
software encumbered by it would enter the "semi-free" or "non-free"
directory hierarchy for three years.  

> >     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?

Yes.  After the three years the logilege ceases to exist and the
encumbered programs can return to the "free" tree, if they have not
meanwhile been encumbered by something else.

However the likelihood of such encumberement is much lower than with
patents and there is a minimum guarantee of survival.
 
> >     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 first says for example that you are free to support a new compression
algorithm in your (proprietary, commercially used) software as far as you
need it for decompression of existing files.  Of course interoperability
is a very pliable concept that would be much subject to interpretation.

> >    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. 

I am equally suspicious.  That's why I even insist on naming it with an
self-critical word like "privilege", quite the opposite of the propaganda
concept of "intellectual property", and on putting the burden of proof
entirely on the applicant, rather than the public, as with the patent
system.

But with the above conditions, I think it wouldn't do much harm.  There
are certainly some software innovations where most of the work lies in the
concept and not in the implementation, such as MP3.  This is why a
reference implementation is required.  The claims start from the
implementation and grow larger, rather than vice versa.  It is a kind of
short-term extension to copyright, and there is an in-built incentive not
to risk over-extended claims.  This is why I assume that logileges would
tend to be sought for only in cases similar to MP3, LZW, RSA or the like,
where in fact the algorithm is quite complex and technical.

Moreover two basic rights, that of publishing one's works and of
interoperating with others, are part of this system.  These two rights are
something we yet have to work to protect.  osslaw.org is such an attempt.

> 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.

I can't see what you mean.

The only troubling thing about the logilege seems that, unlike the
software patent system, it might actually become popular and morally
accepted, and then be used as a pretext for pushing something worse.

But there is an other built-in precaution against this:  the logilege
system would work without patent offices and usually even without formal
proceedings before a lawcourt.  So it wouldn't tend to generate such a fat
lobby of vested interests.

We need to bring this "third paradigm" into the debate, even if we don't
like it.

Patent Offices are currently conducting surveys among their customers to
"prove" that most software companies want software patents.  There are a
lot of people with a proprietarist ideology out there, and if you only ask
them "patentability yes or no?" they won't even think about the
consequences and just say yes.  If you offer a third paradigm, they will
have to think, because it needs to be explained.  After thinking for a
while, most will either answer "copyright only" or "copyright + logilege". 

-phm