[Patents] compulsory-licensing

[PILCH Hartmut phm@a2e.de]

> > On the one hand the letter and spirit of the written law, ...On the oth=
er hand
> > we have patent offices and lawcourts which have chosen to violate the w=
ritten
> > law, corrupt the tradition they stand on, follow the call of gorilla re=
asoning
>=20
> No, law is a process continuously in progress, and the upgrade of the
> interpretation of written law is not a violation of law. Tradition doesn=
=92t mean
> stagnation. And filing software patent is not in contradiction with Art52=
=2E2 in
> accordance with 52.3.

Lawcourts are bound to the law and nothing else. They are not entitled to
judge whether the law is appropriate. They can develop the details of
applying the law, but they can not change the rules that are laid down in
the law.

And these rules say that computer programs are not patentable. Thus, if,
as the EPO believes, the exclusion list in 52.2 is based on the
requirement of technicity, the EPO must use a definition of technicity
that supports this exclusion list. If now it uses a different definition,
it can no longer claim that technicity is the underlying requirement of
52.2.

As far as 52.3 is concerned, it doesn't change anything but just explains
a self-evident logical truth that could have gone into a commentary:  if a
physical invention is implemented by a computer program, this doesn't mean
that the physical invention is not patentable.  It only means that the
computer program is not patentable.  Which is no problem, because the
invention does not lie in a new way to write a program but in a new way to
use natural forces to solve a problem of industrial production.

> > How would you use the compulsory license system in the following cases
> >
> > - patented algorithms in MP3
>=20
> Frauenhofer and Thomson are offering licenses for MP3 patents...

Yet they retain the right to prevent people from developping and=20
publishing free software.  The people at

=09http://www.mp3dev.org/

are living under constant threat, and they can't pay license fees on a
per-piece basis.  Per-piece calculation is a concept from the material
world, which can be transferred to shrink-wrap software but not to
shareware or opensource software. =20

What answer does your compulsory license scheme provide for that?
Do compulsory licenses require that information works are distributed as
shrinkwrap-software?
What is a fair compulsory license for shareware or opensource software?

> > - LZW algorithm used in GIF and many PDF files
=20
> Indem, UNISYS granted about 150 licenses for LZW patent. And you can
> use pdf and gif when obtained with a software of one of the 150
> licensed companies,

Just as is the withholding of Again, this is closed-source shrinkwrap
software.  Closing the source and shrinkwrapping are measures that lower
the usability of the software.

We are having problems with PDF files from the EPO that we have to
concatenate in order to make them readable.  But, since these files are
only pseudo-PDFs with GIF inside, we cannot legally concatenate them.

Acrobat doesn't do it. Buying a shrinkwrap "product" would not solve our
problem.  Such a "product" doesn't allow all the finetuning needed to
fulfill our task well.  And it doesn't run on Linux.

Does your compulsory license scheme provide a means of removing this pain?

> > (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 h=
as
> >     patents on them and hopes to exclude people from the standards.
=20
> It seems, that LINUX becomes for the same reasons a kind of standard.
> What's the problem ?

Linux is becoming popular, and many of the interfaces used in Linux
systems are becoming popular with it.  But these interfaces don't exclude
anyone, which is why big companies were very late to adopt it.  For many
years, they believed that something that isn't pushed by a big company for
the purpose of excluding others won't win.  Managers in companies and even
government agencies were uniformly talking about the "strategic decision
for Windows NT".
=20
> I observe rather fine people they hang out one`s shingle after migrate
> to USA...I don't support the idea that abolish software patent in
> Europe would change the situation.

It may not be enough to change the situation, but it would be a step in
that direction.  There are already some developments that have migrated to
Europe because of US patents.

-phm