[Patents] FFII Database of European Software Patents and Press Conference

[Bernard Lang Bernard.Lang@inria.fr]

On Sun, Nov 19, 2000 at 06:28:20PM -0500, Gregory Aharonian wrote:
> > 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.

as you should have noticed, I did not quite condone this part of the
text as it refers to you, even though I believe that Hartmut has a
real issue.

> 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.

  Patents have been mostly ignored until the past 10 years in the USA,
and are hardly valid in Europe, ehnce not enforced at all,  ... so far.

>  Problems?  Sure, and I know first hand.  But there is
> absolutely no evidence that the programming freedom of the world is
> at stake.

History shows that when there is recognized evidence, it usually is
because it is too late.

>  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

While the issue of scientific publishing is another of my concerns, I
fail to see the connection.

> (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.

Sorry ... you got it wrong ...
  It is the USA that cannot ...  for Europe, it is a commpetitive
advantage, and the US industry is well aware of that.
  You published this paper about the pressure put by the USA on Jordan
to patent software and business methods...  why do you think they do
it ?

>  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.

I am all for European companies patenting in the USA ... even creating
a huge common patent pool.  

>  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.

I think you miss the point ... we do not shoot each other, but
shooting across the Atlantic is OK.  And I am sure US companies are
aware of that.  They would like to be allowed to shoot us.

> 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.

I will not enter that discussion ... it is not a matter for courts but
for policy and regulations.  The issue is whether, in a given area of
technology, patents help or hinder innovation and economic growth, and
this includes various side-effects such as ethical consideration or
societal costs.  Note that this is precisely what is intended by the
USA Constitution.
   Judges are not equiped to make that kind of decisions. Lawmakers
are.  Judges are not supposed to make laws, that is a basic principle
of democracy : separation of powers.

> 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).

see above ... make the economic assessment, assuming that the system
works cleanly, if you can credibly make a case that you can make it
work cleanly.

> 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".

I do think it is ... but again, my point is above.  Are patents useful
?  Economists mostly say no.  Hence the USA is putting itself at an
economic disadvantage.

  On the other hand, since the USA has larger companies, and since
patents favor the larger companies, the USA would have a competitive
advantage if the system were to be generalized.

   So my guess is: if we stop this foolishness in Europe, the USA will
have to relent.  They probably will try pressure first ... which ? I
don't know.

Bernard

> Greg Aharonian

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