[Patents] A hard(ware) nut to crack

[Demotech info@demotech.org]

If ever anywhere hardware is based on software(=information) it is in the
application and devellopmetn of crafts. The goldsmith and the shoemaker use
little tools but plenty info, partly incorporated into their craftsmanship.
Imagine that an open source devellopment of tools usefull for the
development of crafts (specially in conditions of poverty) would work well,
would be very innovative, would be supported by thousands of anonymous
designers! Could this lead to a strong reduction of poverty and the
promotion of sustainable design?
How then to keep the development open source, what would be called 'the
library', what licence or system of licencing could be derived from the
experience gained round Open Source and Free Software?

I have extensive experience with the development of waterpumps, applicable
in conditions of utter poverty. An 'open source' development of such a tool
is what is needed but didn't get of the ground as yet. Also there are no
clear examples of an open source design method which can be repeated in
other fields. As I plan to put to the web my database with a hundred similar
designs, I could use some help in finding the proper method of Linux-like
licencing.

Reinder van Tijen
Foundation 'Demotech, design for selfreliance'
P.O.box 303 / 6950 AH Dieren / The Netherlands
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-----Original Message-----
From: patents-admin@liberte.aful.org
[mailto:patents-admin@liberte.aful.org]On Behalf Of
patents-request@liberte.aful.org
Sent: zaterdag 25 november 2000 12:01
To: patents@liberte.aful.org
Subject: Patents digest, Vol 1 #350 - 8 msgs

Message: 2
Date: Fri, 24 Nov 2000 12:34:37 -0500 (EST)
From: Gregory Aharonian <srctran@world.std.com>
To: Gregory Aharonian <srctran@world.std.com>,
PILCH Hartmut <phm@a2e.de>
Subject: Re:  [Patents] Economic assessment
Cc: Edward Avis <epa98@doc.ic.ac.uk>, patents@liberte.aful.org

>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.

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.

In short, if attacking software patents is an attack on all
software and hardware patents, and given the many similarities
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.

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
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.

Greg


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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

> 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.

> 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.
    3. An apparatus constituting a physical entity or concrete
    product, suitable for performing or supporting an economic
    activity, is an invention within the meaning of Article
    52(1) EPC.

        http://www.theregister.co.uk/content/4/14909.html

An M$ hating Linux programmer was awarded a prize for his contribution of
a patent to Microsoft.  This patent had been applied for independently of
him, and the company, in which he no longer works, was bought by M$.  M$
is now using his work to keep people from writing powerful debuggers.

-phm




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