[Patents] patent inflation

[PILCH Hartmut phm@a2e.de]

Happy New Year!

I discovered a nice article by the Siemens patent manager which shows
their way of thinking, and used this as an inspiration for an article on
the workings of patent inflation, which is not yet finished.

http://swpat.ffii.org/stidi/tisna/indexen.html

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                              Patent Inflation
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     * [36]Arms Race Logics
     * [37]The relentless march of the Patent System
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Arms Race Logics

   Generally it is believed that large corporations like IBM and Siemens
   are interested in extending the patent system, because they profit
   from keeping small companies out. But that is at best half of the
   truth.
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   In fact, large corporations are not those who profit most from the
   patent system. Some smaller entities, who focus entirely on
   developping patents rather than on product development, are even
   better fit for survival under the rules of an extensive patent system.
   Companies like Qualcomm.com, Priceline.com and many others can be a
   pain in the neck for Siemens or IBM and cause these companies to lose
   more money and freedom through software patents than they can gain
   through them.
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   Why is it then that large corporations are still pushing for an
   extension of patentability in Europe?
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   An recent [38]article by Arno K=F6rber, head of the patent department of
   Siemens, gives the answer.
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   K=F6rber regrets the loss of "patent peace" in the area of
   micro-electronics and software and ascribes this to decisions by US
   lawcourts, namely the CAFC, in the early 1980s. He describes how this
   has adversely affected interoperability, and he does not claim that it
   has brought any benefit either to Siemens or the economy as a whole.
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   Yet K=F6rber says that Siemens has been pushing German patent courts and
   patent offices to emulate the US practise. The reason for this is that
   Siemens is oriented toward the global market, and this market has come
   under a strong impact of the US patent system. In order to make sure
   Siemens obtains as many patents as its US-based competitors, the
   patent department must make sure Siemens employees are motivated to
   patent everything they develop. They will not be sufficiently
   motivated, if they can not obtain a valid patent at home as well as in
   the US.
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   Thus it seems that the country that has the most expansive patent
   system of the world will automatically tend to set the pace of the
   others.
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   K=F6rber writes that Siemens contributed its part to develop German
   caselaw in the direction of software patentability. In fact, Siemens
   and IBM have fought various borderline cases through to the hightest
   courts and obtained principle decisions that extended patentability
   step by step. Other companies again used this as a precedent to claim
   rights for themselves. Those companies, who might suffer from an
   infringement lawsuit, usually have no interest to push for a principle
   decision and thus will not attack back on grounds of non-patentability
   but only on grounds of lack of novelty. No agent of the public ever
   filed a lawsuit to move things into the opposite direction.
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   Moreover, in general it is the patent department that decides a
   company's policy on patentability. And, as K=F6rber points out, thanks
   to the recent extension of patentability, the patent department of
   Siemens has become very important. It is no longer a mere service
   facility but a center of enterpreneurial activities. It is well a
   known reality that any organisation will tend to opt in favor of those
   principles that allow its representatives to dominate the
   organisation. Whether these are good for the organisation as a whole
   is only a secondary matter.
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   Finally, the same priniciple applies to patent offices and patent
   lawcourts. The more patents they grant, the more important they
   become.
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   To summarize, we can discern several motors of patent inflation:
    1. the most extensive patent system wins internationally
    2. caselaw development works only toward inflation, not deflation
    3. patent inflation reinforces the power of patent representatives of
       companies
    4. patent inflation reinforces the power of patent offices and patent
       courts
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The relentless march of the Patent System

   The patent system was established in 1877 in Germany against a very
   critcial public opinion. It prevailed only because its proponents were
   able to limit it to a core domain, in which its restriction on freedom
   is not widely felt and its usefulness is often highly valued:
   inventions with an "industrial application". Not only were abstract
   logical and mental activities excluded, but also agriculture, mining
   and other not strictly industrial areas. Later it was clarified that a
   "new teaching about the use of natural forces" had to be at the core.
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   In the manufacturing industry, there are usually only a handful of
   companies, whose production involves high organisational efforts and
   equipment costs. Industrial companies keep their knowledge secret, in
   order to protect themselves against the depletion of their funds by
   copycat companies, who need less research and development. But, since
   secrecy is not good for overall social progress, the patent system
   strikes an interesting deal: the inventive company is granted a
   temporary monopoly in return for publishing its knowldege.
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   ... (to be cont'd)
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    http://swpat.ffii.org/stidi/tisna/indexen.html
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References

  38. http://swpat.ffii.org/vreji/papri/boch97-koerber/indexde.html