[Patents] Economic assessment

[PILCH Hartmut phm@a2e.de]

> >By reasserting the "technicity" or "transformation of matter"
> >requirement, we have been proposing delimiting criteria for the
> >patent system that go far beyond software, as you have noticed.
> 
> Exactly my point.  This argument is not against just software
> patents, but other technology areas as well.  For example, I will
> bet you anything that I can take the definitions of "technicity"
> and argue successfully in a German court that digital circuit
> diagrams are little more than computer source code (using standard
> definitions of software and whatever the dictionary definition
> the German courts invented for "technicity"), and therefore digital
> hardware circuits should not be patentable if software isn't
> patentable.

We have had two layers of guarantee against software patents in the past
and would like to reassert both:

(1) Art 52.2c:  a program cannot be an infringing object, no matter what
    theory is used to draw the border between patentable inventions and
    non patentable innovations
(2) The border is drawn based on the theory of "technicity" as worked out
    by the BGH in 1976 or by the pro-innovation.org report in 2000 or
    better  

The technicity theory can be used to eliminate a lot of patents beyond the
software realm, but this needn't be done if there is not enough support
for doing it.  The technicity theory includes a lot of knobs for
fine-tuning and adapting to the political will of the interested parties.
I'd prefer to apply it very rigidly and thereby eliminate a lot of purely
algorithmical hardware patents also, but that needn't be done, at least
not right away, if it isn't politically expedient.  One can even go to the
extreme of abandoning the idea of absolute enforcability and allowing a
gray zone of untechnical hardware patents which can be circumvented by
software.  This is actually why we need the above (1) as an extra
guarantee.
  
> Beyond dictionary definitions, one could additionally argue that
> most hardware circuits being patented are simple combinations of
> well known digital hardware techniques, especially as hardware
> developers are increasingly using large libraries of hardware
> circuits in a reusable way to develop new systems, little different
> than people taking libraries of Open Source software to build new
> systems.  The time and money to develop new working hardware
> systems is the same order of magnitude for developing new software
> systems that actually are debugged.

According to a strict technicity theory, only a new way to make use of
natural forces to achieve a hitherto unexpectable result would be
patentable.  Thus, only a certain non-co-designable way to put wires
together would qualify, and you would patent only the way this is done,
not the algorithm realised thereby.  Thus a lot of circuitry and mechanics
would break out of the patent system.  But, again, it needn't if this is
not found to be politically desirable.  One can live with a somewhat
warped technicity theory, at least for a few years.
 
> In short, if attacking software patents is an attack on all 
> software and hardware patents, and given the many similarities

It is not.  
I am proposing that between zero and a large number of hardware patents
are also attacked.  But certainly not nearly all hardware patents.  There
is a well defined large group of true technical inventions which will in
any case be patentable.

> between digital and analog circuits, an attack on all electronics
> patents.  And it all does relate to 52c.  The term "computer
> program", i.e. software, source code, etc., can be interpreted
> in very broad ways in light of CAD, CAE and CASE tools to cover
> not only just traditional software, but digital circuits, and
> a variety of mechanical and chemical designs as well.
 
> In fact, your campaign can fail if supporters of software patents
> start attacking patents in other technology areas as being little
> more than "software", which is a very easily winnable argument.
> That suddenly turns the campaign into one against all patents,
> which will force European politicians to seriously think about
> these issues (instead of the knee-jerk mindless voting they did
> earlier this week), and probably run away scared.

It wouldn't be bad if they did start thinking about it.
Whether we will really argue to eliminate all non-technical (purely
algorithmic, calculation-based, no new empirical knowledge involved)
patents depends on the support that this thought gets in other industries
and among economists.  I am not pessimistic about it.  It has been known
among economists since many decades that the patent system works well in
the areas of empirical knowledge (nowadays mainly chemistry, pharmacy and
parts of some other areas) and poorly elsewhere.
 
> Most of the arguments made against software patents in this forum
> apply to most other areas of technology.  Fighting then against
> software patents as an isolated activity doesn't seem to be a 
> wise thing to do.  And to make clear, I want to see all areas of

We have to focus on what we are legitimised to do.
We are credible as software people, not as patent experts or economists.
We can propose a technicity theory that involves others and tries to
repair the whole patent system.  But that must get other people's support
as well.  Therefore we also need argument one, the general disclaimer for
programming freedom which is written in Art 52 EPC and is fortunately
staying there for the time being.

Striving for a systematic theory is a noble goal which I support for the
same moral reasons for which you insist on it when criticizing the Berman
act.  You propose a systematic solution:  patent everything manmade under
the sun that is new and non-obvious.  However we have shown that this is
not only harmful but also contradictory.  It is a non-answer to the
problem.  There is an answer, but it is difficult to systematically
implement, because politics is not systematic.  That is why we can only
fight piece by piece, acting locally (software-specifically) and thinking
globally, i.e. keep spreading the word about the systematic delimiting
theory. For the time being, even unsystematic solutions like the Berman
approach help bring us closer to the goal.

> patenting examination cleaned up, to get rid of the crappy bad
> patents being issued in all fields, done first, so we can then
> argue about the patentability and philosophy of those far fewer
> in number patents that issue.  I suspect most complaints would
> go away, especially with the software patents.  All it takes is
> making the existing system run more efficiently.

This has been promised for ten years, and it got worse during the time.
Even if this wasn't so and a cure of the novelty/non-obviousness was in
sight, that wouldn't solve the problem of subject matter delimitation.
Even if it was a solution, given that politics is inherently unsystematic,
we need to keep the disclaimer on behalf of programming freedom in Art
52.2c.
Programmers first of all want to be secure and free.  They cannot be
conscripted for solving the inconsistencies of patentability theories.
Those must be solved by others, under the condition that programming
freedom is granted.  That is part of the task patent theoreticians have to
solve.  If you believe it is difficult due to codesign tools, then you
have not solved your problem.  You can't conscript programmers to make up
for the difficulties of you not being able to solve a theoretical problem.

-phm