[Patents] logilege and logidend

[PILCH Hartmut phm@a2e.de]

Is the following useful for the EU consultation process?
Please comment!

http://swpat.ffii.org/stidi/basti/
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               Third Paradigm beside 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.
                                      
   
   Abstract-logical innovations are according to traditional European
   property law are situated in the public domain, also regretfully
   called "nobody's land" by some intellectual property lawyers:
   
                | abstract      | concrete
        ------- +---------------+---------------
   physical     | patents       | private property
   logical      | public domain | copyright
   
   Many discutants 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".
   
   However here and there we can find extreme counter-examples. Some
   mathematical theorems were known for centuries before someone came up
   with a successful proof. Yet even this does not mean that a simple and
   brute monopoly on all computer program implementations of an
   abstract-logical innovation is the price that society has to pay.
   Besides patent-like monopolies, less disruptive remuneration systems
   should be envisaged for this realm.
   
Soft Patents for Hardware Logics

   Innovative processes for whose implementation not more than a new
   computer program running on known hardware is needed, could still be
   monopolised as long as this monopoly can be enforced without impeding
   the dissemination of computer programs, i.e. in those cases in which
   the process does 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) publishes
   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 a fixed number of years starting from the day of publication.
   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 published 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 publication. 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.
   
   Initially only the "problem to be solved by the innovation" is
   published together with the prior art, and the whole logilege
   description is made available only in an encrypted form. From this day
   on up to the decryption of the logilege description, any person may
   publish solutions to the problem, which become prior art. If such
   prior art invalidates the logilege, the deposit sum is paid to the
   author of the earliest invalidating publication.
   
   The applicant may allow more time for the problem solving tender and
   in return receive a a longer exclusion period, e.g. one extra year of
   validity for each extra month of problem solving tender.
   
Logidend: Logical Innovation Dividend

   Instead of exclusion rights we here grant non-exclusive remuneration
   rights. Such rights directly reward innovators without interfering
   with other people's programming freedom or with interoperability. Our
   informational infrastructure thus remains a property-free Commons
   zone. The logidend is payed out of funds from taxes on computing
   devices or the like. The value of each logidend is determined by a
   sophisticated social engineering scheme rather than by the
   conventional "free market" approach.
   
   The owner of a "logidend" publishes an innovative abstract-logical
   method and enjoys a dividend in a public fund for 10 years starting
   from the day of publication. The money is raised through a special
   tax, e.g. on computing devices as currently done for copyright in
   Germany. Each taxpayer has a vote, which he can cast through free and
   secret balloting in favor of one of several qualified innovation
   promoting organisations, each of which applies its own policy to
   determine the dividend value of each logidend, based on its estimated
   contribution to the direction of social progress which the
   organisation intends to promote.
   
   The logidend excludes nobody from use of the idea. However verbal
   tribute should be paid to the innovator wherever the idea is used.
   
   The rules for sorting out real innovations are similar to those of the
   "logilege" outlined above.
   
Inspiration for Patent Reform

   "Third Paradigm" rights 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.
   
   Many aspects of the logilege could also serve to inspire a reform of
   the existing patent system. But patent lawyers will contend: "if it
   ain't broke don't fix it". Within the framework of patent treaties,
   reforms may meet even more obstacles, starting from a minimum
   requirement of 20 years of patentability (TRIPS Art 32). It will be
   hard to overcome the resistance from those who insist that the
   conventional patent system works well enough in its home-base area of
   physical inventions. In the area of logical innovation however more
   refined means such as the invalidating quest system are indispensable,
   because the truly worthy innovations must be filtered out from a
   volatile world where innovation is daily routine and the state of the
   art is rarely consulted let alone documented. Thus any
   abstract-logical property paradigm faces specific challenges, for
   which the patent system never needed to develop an answer.
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    http://swpat.ffii.org/stidi/basti/indexen.html
    2000-10-24 FFII e.V. SWPAT workgroup