[Patents] Third Paradigm between Patent and Copyright is the 1844(!) french patent reinvented by Hatrmut

[jgk.novatek jgk.novatek@estelfree.net]

only for comparison

I rewrote the Questionnaires for French industry A (small company) and
answered

      These questionnaires will be used to find out what people in the
          European industry think about patents

How would patents affect your company?
medium
   1. Have you ever been approached or attacked by a patent owner for
       infringement of his patents?
 yes, american or German competitor
    2. How many of the 400000 European patents could be relevant
       for your field?
say 2000
    3. How many of these do you own?
say100
    4. How much money do you expect to spend on
         1. patent research
 15000 FRF per year
         2. patent applications
50000 FRF per year
         3. patent license fees (subtract the fees you expect to earn
            yourself)
  5000 FRF per year
         4. patent infringement lawsuits
 250000 FRF per ten  years if I am the patentee
less if I am the infringer because I modify the infringing object for non
infringement
       5. How many patent specialists are working in your company now?
zero
    6. How much could your company gain by being able to fight off
       imitators?
 zero to 20% of turnover increase
    7. How much could your company lose by having to work around other
       people's patents?
50% more in R&D
    8. How does the availability of open source software affect your
       company?
          + It takes money out of the software market and threatens our
            revenue stream
NO
          + It enables us to provide better solutions to our customers
N/A
          + It provides a good infrastructure for our own software to
            build on
Could be but not enough knowledgeable people available for implementation

    9. Do you ever disclose source code of your own?
         1. No, we do not write software at all

   10. How would the enforcability of European patents
       affect your willingness to disclose source code?N/A

         1. to customersN/A

         2. to the publicN/A (non applicable)


What should be decided in November 2000?

    1. Computer programs should be patentable
Not as such
, and such patents should be as fully enforcable in Europe as they are in
the United States.
No
       The European law should be changed according to the Basic Proposal
       of the European Patent Office without further delay.
NO not before a solution exists for a correct examination

2. Whether and HOW computer programs should be ENFORCED depends mainly on
       the effects this would have on the European economy and society.
yes , the States have a lot of compulsory licences schemes in their national
law for that

       These effects have not been sufficiently studied.
N/A
 Europe should not change the law this year
yes
 but allow itself a 2 year moratorium to further discuss the issue.
NO not before a solution exists for a correct examination

    3. Computer programs should not be patentable
         1. Software copyright is quite sufficient to protect the
            legitimate interests of software companies
    I do not know

     2. Copyright alone isn't sufficient either. A third paradigm
            property scheme is needed to better reward innovation

  that is only another kind of patents with a special license scheme
the word  paradigm brings no difference



> > > Soft Patents for Harware Logics
> > >
> > >    Innovative processes for whose implementation not more than a new
> > >    computer program running on known hardware is needed, ARE ALREADY>
> >    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.
What is  "moderate" ?
Why should the patentee not monopolise the programmed apparatus?

> Legacy "software patents" could be enforced against hardware
> implementations.
please explain the "Legacy" "software patents"

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.
yes, déjà comme ça
this is the enforceability exception of "private or experimental
use"(article L613-5 CPI)
it is independent of the subject matter of the patent (software or not, does
not matter)
please buy at JOurnaux Officiels le code de la propriété intellectuelle

 >
> 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.
yes, déjà comme ça
but the EPO has today nopower regarding enforceability

>
> > >    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.
do not understand

  It seems that the patent
> offices are afraid of being consistent, because consistency in this point
> would expose the basic inconsistency of patenting software.
>
do not understand "the basic inconsistency "  and how it is measured


>
> > I think the patent system should work like that, possibly with longer
> > validity.
yes, déjà comme ça

>
> The following logilege features may not be applicable to patents:
> (a) 3 year validity
for free ??
20 year for patents but you pay each year an increasing tax


> (b) scope of claims must be narrow enough to enclose neither prior art
yes, déjà comme ça for patents

>     nor possible future innovations
this is the problem
what can you do to enforce the logilege in that case ?
the infringer is "only a future innovator" all the time


> (c) limitation by right to publish and right of interoperability

yes, déjà comme ça for patents


> (d) inadmissibility of posterior narrowing of claims
yes, déjà comme ça for patents

but will probably change under american pressure
>
> Of course it could be wise to apply b-d to the whole patent system.
yes, 75% déjà comme ça for patents

> There is no reason not to apply c except that it normally is not a
> problem with traditional patents.

yes, déjà comme ça for patents
there is a french ruling of court applying c


> Then there would no longer be a third paradigm but only an improved patent
> system with a reduced validity period for abstract-logical innovations.
>
there is no problem because drugs enjoy an extended validity period

> But reforming the patent system in this way has been made impossible by
> TRIPS, and after all it.
then use compulsory licensing
the States have a lot of compulsory licences schemes in their national law
for that



 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.

publication has never been infringing
>
> One more thing to do would be an inventivity competition:  the inventor
> first publishes the problem and tenders for solutions.

inventivity competition is a competiton and enjoys no right

For three> months anybody can submit a solution.  The submitted solutions
are
> regarded as prior art,
what happens if the invention has been stolen?

 against which the logilege description, which is
> then published, must be measured.

what happens if the invention has been stolen?
the inventor "first(?)" publishes the problem and has to pay his thief ?
very fair !
_________________________________________________________________
>
>
>               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.
why a transitory solution ?
>
> 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.
ARE ALREADY    monopolised in those cases

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.
the car maker has no choice    and the  patent owner may or may not prefer
to
cash license fees
 .it depends



> 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
what is commercial ?

>     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.
why make the claims ?
why not only a disclosed logilege description ?



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.
yes, déjà comme ça for patents to make it easy  for ONE skilled in the art
to access the description

The
>    scope of claims must be sufficiently narrow so as to contain neither
>    prior art
yes, déjà comme ça for patents to make it easy  for ONE skilled in the art
to test validity. of claims

nor future innovations.
this is the problem
what can you do to enforce the logilege in that case ?
the infringer will claim all the time to be "only a future innovator"



>    The logilege enters into force on the day of its disclosure
which day exactly is that ?


. There is
>    no examination procedure.
please see old French law of 1844 in force until 1968 :  you have only to
copy it !


 The owner guarantees that claims are valid
this is impossible to guarantee
because nobody is a "je sais tout"?

what happens if  owner guarantees that claims are valid in good faith and
the claims are NOT valid ?

    by paying a deposit of 10000 EUR,
this is much more expensive than filing patents and very risky for owner?
is the owner the inventor or his boss?

which will be paid to the first
>    person who succeeds in proving the invalidity of the logilege.
who will judge that the proof is complete ?
a patent court ?


 One
>    serious flaw, such as an inadmissible claim, suffices to invalidate
>    the whole logilege.
this is unfair and extreme
why make the claims ?
why not only a disclosed logilege description ?

 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,
please see old French patent law of 1844 in force until 1968 :  you have
only to copy it !


 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.
personnally I would not sleep well if I were the privilege owner
I would ask ALLIANZ or AXA for a very very very good insurance
this is the best way of monopole in favour of big and rich companies !
high degree of responsibility on the part of the privilege owner equals
"deep pockets"


as a French patent attorney I thank PILCH Hartmut <phm@a2e.de> for
demonstrating that the old French patent law of 1844 in force until 1968 was
a very good law

if ten people or more want to become aware of the patent system; please send
your interest  to    www.novatek.tm.fr
and buy before at JOurnaux Officiels le code de la propriété intellectuelle

un manuel de formation en français est disponible pour  1000FRF HT
à   Novatek
     BP 67
     16 rue Saint Martin
      57430  SARRALBE
des séances de formation (éligibles au 1% formation )  sont faites à partir
de ten people or more

bon courage pour la suite de vos discussions

J G Kaspar