[Patents] The Market and the Forum

[PILCH Hartmut phm@a2e.de]

> By the way hartmut, WHERE are the English translations of these German
> court decisions?  I think they are wrong, but I can't comment like you
> keep on asking in these postings, until I can see the decision.  By the
> way, I ma having problems linking to swpat.ffii.org - check the server.

There are no English translations (yet).
Anyway, what is important are not the court decisions but the theory
therein.
You can find, when the server is back up, some of it in an English version
at

        http://swpat.ffii.org/stidi/epue52/

and some in chapter 5 of the study at

        http://www.pro-innovation.org/rappor_brevet/

Besides having a systematic backing by a theory of technicity which
demands that the inventive core of the solution be situated in the area of
directly using natural forces for a causal effect, there is also a legal
disclaimer in 52.2 saying that certain items cannot be the object of
patent claims, meaning that freedom to do these things is protected by the
will of the legislator, no matter what systematic delimiting theory
(technicity theory) is used.

Adding "as such" from 52.3 to make 52.2 look opaque, as frequently done by
patent lawyers here, is the kind of wordplay that you have been justly
attacking.  There is no reason to construct an entity "program as
such" and differentiate it from "program not as such", just as nobody
would construct a "game as such" and a "game not as such".

The limit is actually quite simple.  If you have a truly "technical" anti
blocking system (as in the court decision of 1980), then you may get that
patented, but such a patent applies only to the transformation-of-matter
type process and system which you claimed, not to the program as
such. The program itself is outside the scope of patent claims.  It may be
worked out and published or sold freely, just as any documentation of the
patented process may be worked out and sold freely.

The same would apply to your co-designed hardware.  You get a claim on a
new way of laying circuits, taking their material properties etc into
account.  But you don't get a claim to algorithms realised thereby.
If you do, by some error of a court, get such a claim, you will not be
able to override the programming freedom disclaimer in 52.2c.

That is the kind of law we need, and at least for the time being nobody is
offer any other nearly as clear rule to protect our freedom.  People
often point us to "inventivity", but offer no clear definition of
determining it.  Even there, the requirement of experimenting
with natural forces implicit in the "technicity" concept is the best
defining concept for "inventivity" which I can find.  Although it is not
perfect, since some mathematical proofs require great ingenuity.

Yet even there, my social choice is:  no patents for mathematical proofs.  
Instead, let society accept that there is not only a market economy but
also a forum economy.  The former is that of material goods, the second
that of thoughts and theories.  The Market regulates by money, the Forum
by communication, fame etc. The Forum should be actively supported by
collective efforts, investment in education etc.  It should not be
subjugated to the Market, and trying to do so doesn't even lead to
macroeconomic benefit.  We should persuade public opinion to actively
support science and education.  Actually, you can understand Market
Economy only if you study it together with the second big system of
economics, the Forum Economy.

Popularized public opinion tends to negate the consensus on the necessity
to put up a collecitve effort to support the Forum, e.g.

        "We don't need to fund science or culture.  If it is good,
        it will prevail on The Market.  Anything that
        can't assert itself on The Market needn't exist.
        You say that some scientific theories can't be transformed into
        marketable goods?  No way, use patents!"

This is very dangerous and should be fought directly.  The German
Ministery of Education+Science (BMBF) is planning to spend 100 million DEM
to promote patents in universities.  I see in that an implicit effort of
the government of withdrawing from its responsibility for science.  Very
stupid indeed, because fostering science means fostering human potential,
which will again boost the market.  We should do something about that.

In the software field there is anyway no such alternative as trying to
provide a Market incentive to the development of logical ideas.  The
Market incentive is already there by copyright.  It is by nature not
perfect, because it is about information, and you must study it together
with the other economic circuit, the Forum.

-phm