[Patents] patent pools enforcing per-copy-licensing mode of software development

[Ram'on Garc'ia Fern'andez ramon@jl1.quim.ucm.es]

On Thu, Dec 28, 2000 at 10:38:41AM +0100, A +W Endres wrote:
> In Germany, we have a criterium called "Erfindungshöhe" (meaning 
> significance
> of
> the invention). This is an important yardstick and requires professional
> knowledge to
> apply correctly. If not applied, we would indeed be flooded by trivial
> patents..

There is no such criterion in the TRIPS treaty, nor in the European
Patent Convention. Certainly not in the US law. Probably no future
patent law will contain such criterion. So according to your
prediction we will be flooded by lots of trivial patents. In fact,
this appears to be the case now.

If we use the criterion "new, useful and non-obvious", trivial patents
meet this criterion and will be granted. For example, a problem that takes
two hours to be solved is "non-obvious" but it is probably trivial. 

> > Often patented inventions are accidentally reinvented and infringed.
> > In those cases, patents are not helping the society at all: we
> > would learn the invention anyway, perhaps some months later.
> > What do you think about that?
> 
> If I violate a law that I did not know about, my ignorance is not accepted
> by the courts as an accuse. For this reason, I have been arguing that all
> juridical literature should be "public good" and free of charge. I have not
> gotten much support yet. I am also asking that knowledge about patented
> inventions should become a significant part of basic engineering education
> (not just in software engineering). As you know, patents are extremely
> well documented, easily accessible and freely useable for education and
> research.

Either my explanation was not clear or you did not understand my
point.  My point is that if an invention was accidentally reinvented,
the society would not have better grant the patent; we would have the
invention anyway without having to give the monopoly. In other words,
patents should be granted only on such inventions that would not be
possible without the incentive of the patent.

> 
> > According to Pilch you said:
> >
> > > True software engineering, he says, needs patents, and the hobbyists
> > > should be sacrificed for that.
> >
> > Software patents began to be used in the US after 1982. (Before that date,
> > they where occasional and very rarely enforced). The most important
> > development of the software industry where before 1982. Facts apparently
> > contradict your statement "True software engineering needs patents".
> 
> As I said in a previous note, I think
> that the difference between science and engineering can be explained
> by the difference between discoveries and inventions. [...]

There are no facts that support that copyright does not provide enough
incentive for innovation, and that patents have encouraged innovation.

Ramon