From srctran@world.std.com  Sun Nov 19 23:28:20 2000
Date: Sun, 19 Nov 2000 18:28:20 -0500 (EST)
From: Gregory Aharonian srctran@world.std.com
Subject: [Patents] FFII Database of European Software Patents and
 Press Conference

> Important moments of history reveal on which side your heart stands.
> Very few people can keep their dark sides to themselves in such 
> situations.  But the readers of this list will remember where Greg 
> Aharonian stood, when programming freedom for the world was at stake.

Now Bernard, explain to me why "dark side" isn't insulting. Surprise he didn't
call me a devil or something.

That aside, Hartmut is exaggerating these issues.  The programming freedom of
the world is not at stake.  Software development has had a healthy and
economically thriving history of 40 years in America and Europe, continuing
in current events, despite the 100,000+ software patents in America and the
30,000+ software patents in Europe.  Problems?  Sure, and I know first hand.
But there is absolutely no evidence that the programming freedom of the
world is at stake.  If anything, I and many librarians wish it were.  The
libraries here in the US are groaning under the strain of journal and conference
proceedings growing ever larger in size, and the continual creation of new
software journals.  It is getting harder and harder to maintain well stocked
representative libraries.  In short, there are zero threats to programming
freedom, as measured by the exponential growths of printe pages of materials
on software (and trying to keep up with all of this as a patent buster is
harder and harder).

So Hartmut hurts his own cause by exaggerating the threats patent pose.  
Additionally, Europe cannot treat its patent system in isolation, which I am
sure has not escaped the attention of European governments.  With less software
patent activity in Europe, European companies will beless able to sell their
software in countries like the US where software patenting is much more active.
Software patents are a trade barrier of a sort - for Europe to get rid of them
is a form of economic unilateral disarmament that makes little sense.

In the end, these arguments come down to which court is least confused about
computing, the Germans or the Americans (and I will compare the two once I get
can an English translation of these decisions Hartmut is always referring to.)
The German courts argue that software is not patentable, while the US courts
argue that it is.  How does one choose which set of judges are in the right?
Both sets of judges issue their opinions based on prior opinions, so in essence
we have two sets of opinions that conflict.  So the question is, where did one
of these courts go wrong?  I suspect it is the Germans, because of the nature
of the conclusions. The American courts somewhat are arguing that they won't
bad software/business patents because their natures are too ambiguous for
simple prohibitions - you can't ban what you can't specifically describe. The
German courts pretty much are saying the opposite.  I think the American court's
attitude is more honest, until such time that the language of these arguments
is made rigorous using more formal mathematics.

Myself, seeing two courts so much in disagreement, I think it is a mistake to
fix the system by banning "software" patents, but rather, as I have argue for
many years (longer than Hartmut), would rather work towards fixing the patent
examination process so that most of these crappy patents don't issue (manyof
which can be invalidated on the unambiguous grounds of lack of novelty, as
opposed to the more trickier obviousness).

And frankly, that is my bet on how the European governments will ultimately decidecide.  To play the game of global software, European companies are going to
need software patents and the experience of patenting in a global economy where
companies from other countries are playing these games (starting with IBM whom
Hartmut doesn't have the balls to question their "dark side").  And it will be
easier for the European governments to do so, in light of exaggerated phrases
like "the programming freedom of the world is at stake".

Greg Aharonian




