[Patents] Re: french views

[PILCH Hartmut phm@a2e.de]

> In my concern, I 'm mostly in touch with small companies and start-up. Th=
ey
> have a burning need of protecting their innovation, especially software
> innovations. They can=92t abdicate of the possibility of claiming a solid
> industrial property right, particulary in partnerships with big clients. =
They
> must manage the =93return of invest".

This confirms what I said about patent lawyers.  They meet gorillas every
day and finally they become gorillas themselves.

Any real professional in the software business knows that this business
works quite well with copyright and sometimes even without that.
=20
> Your standpoint lead astray many young companies I met : they deduce
> from the report of your opinion that software are nowadays excluded
> from patent system in Europe. When I show them that foreign
> competitors (they not lead from this kind of misinformation) are
> titular of patents even in Europe, they feel trapped.

Again you are measuring our viewpoint by the effect that this has on
ignorants.

Of course we have a complicated situation which not everybody understands.

On the one hand the letter and spirit of the written law, based on a
refined tradition of reasoning starting in the 19th century, requires that
patents are only granted for physical inventions and that
informational/mental/logical innovation generally enjoy the freedom rights
that our society considers important for the development of this sphere.

On the other hand we have patent offices and lawcourts which have chosen
to violate the written law, corrupt the tradition they stand on, and
follow the call of gorilla reasoning.

Thus, if I was working as a patent attorney, I would also need to tell my
customers that they'd better get patents on software.  If they don't,
others will, and they will be in a bad bargaining position when faced with
gorilla blackmail.
=20
> Software patents in Europe are a reality. Companies have to take this rea=
lity
> in account.=20

Right.

> This doesn=92t mean that all companies MUST file software patents.

No, it does.
If posessing guns is allowed, you'd better get a gun for yourself.
Even if you want to write opensource software, you'd better pile up some
a stock of weapons to defend yourself.
IBM is in a good position for writing opensource software.

> I agree that the =93free software=94 model is a quiet good and efficient
> marketing model.=20

I never said that, and it is irrelevant here.

> But you can=92t foist this marketing model to companies or people that
> have the chance to be financed from governmental resources or from
> other resources.

Nobody tries that.
Software companies are quite happy to work with copyright.
Of course, if patents are available, they'll do their best to get one.
But this doesn't mean that on the whole they can benefit from patents.

>  My proposal is rather making progress patent law in order :
> - to avoid conflict between patent and standard by compulsory license sys=
tem,

Good proposal, which could be worked on independently of ours.
Why not start to campaign for it right away.
I only see you campaigning for software patents but not for a revival of
the compulsory license system, which has been dead for many years and
would take great efforts to revive.  Where are those efforts?

Let's give this a try.

How would you use the compulsory license system in the following cases

- patented algorithms in MP3
- LZW algorithm used in GIF and many PDF files
- Microsoft ASF=20
- possible patents on the Windows NT journalling file system

Problems are
(a) most software standards are not decreed by anyone but become
    standards, e.g. as a result of being pushed by a big company that has
    patents on them and hopes to exclude people from the standards.
(b) some official standards like MP3 were created by a consortium of
    companies that explicitely patented parts of them and would not have
    created the standard if they had known that this might lead to
    a compulsory license being imposed upon them.

> You must be aware that software patents are more and more used in Europe,
> that companies are familiarized with dealing patents politics in order to
> conclude alliances, and that the point of view of the sole consumers is t=
o
> reducer.

This may be a fact but it doesn't mean I have to condone or support it.
=20
> Europe can=92t become a country limited in consumption of technology
> developed of foreign companies structured on their patent system.

The patent system is stifling innovation in the USA, and if Europe can
manage to keep free from it, the important technological developments may
migrate to Europe.  It wouldn't be the first time in history.  It has
happened to aviation industry, which because of its excessive patstriction
in the United States by the Wright brothers then developped more rapidly
in Imperial Germany, until, shortly before World War II, the US government
intervened and annulled some US patents.  See Shulman articla in MIT Tech
Review.

-phm