[Patents] Third Paradigm between Patent and Copyright

[PILCH Hartmut phm@a2e.de]

> > 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.
> 
>   I did not understand this example  ... can you rephrase it.

Legacy "software patents" could be enforced against hardware
implementations. If the same mechanism is realised as software that runs
on a universal computer (including a user-reprogrammable automobile
engine) the patent would no longer be enforcable.

This kind of rule would be useful for dealing with legacy patents from the
EPO.  I don't believe it has much merit beyond its usefulness as a
compromise solution.
 
> >    The disclosed logilege description comprises a reference
> >    implementation
> 
> as used to be the case for patents, if I remember correctly

patents should contain implementation examples, but in the case of
software patents, this rule is not applied.  It seems that the patent
offices are afraid of being consistent, because consistency in this point
would expose the basic inconsistency of patenting software.
 
> you mean "person" ... I do not see why someone should be excluded for
> not having internet access.

ok.  corrected, see below.
 
> I think the patent system should work like that, possibly with longer
> validity.

The following logilege features may not be applicable to patents:
(a) 3 year validity
(b) scope of claims must be narrow enough to enclose neither prior art
    nor possible future innovations
(c) limitation by right to publish and right of interoperability
(d) inadmissibility of posterior narrowing of claims

Of course it could be wise to apply b-d to the whole patent system.
There is no reason not to apply c except that it normally is not a
problem with traditional patents.
Then there would no longer be a third paradigm but only an improved patent
system with a reduced validity period for abstract-logical innovations.

But reforming the patent system in this way has been made impossible by
TRIPS, and after all it.  And even if everything is integrated into one
system, the fact that there is a recognized borderline between
concrete-physical and abstract-logical as well as between publication and
use of information already makes for a third paradigm.

One more thing to do would be an inventivity competition:  the inventor
first publishes the problem and tenders for solutions.  For three
months anybody can submit a solution.  The submitted solutions are
regarded as prior art, against which the logilege description, which is
then published, must be measured.

-phm

PS:  the latest improved version of the Logilege proposal:

     _________________________________________________________________
                                                                         
   
              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
    2. implementation of the method in property-restricted objects (e.g.
       in proprietary software)
       
   for three years starting from the day of disclosure. Nobody may be
   excluded from
    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
       
   The disclosed logilege description comprises one or more reference
   implementations 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 its validity. The
   scope of claims must be sufficiently narrow so as to contain neither
   prior art nor future innovations.
   
   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
   person 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 lightness and shortlivedness of
   abstract-logical innovations requires a fast and unbureuacratic
   procedure, while the great public cost, that any privilege on
   abstract-logical innovations tends to generate, demands a high degree
   of responsibility on the part of the privilege owner.
     _________________________________________________________________
   
                                                                         
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    2000-09-01 FFII SWPAT Workgroup