From halber@idea.net.pl  Fri Feb  9 10:43:36 2001
Date: Fri, 9 Feb 2001 11:43:36 +0100
From: JHalbersztadt halber@idea.net.pl
Subject: [Patents] Ones more on Samuelson/Davis/Kapor/Reichman Manifesto
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Hartmut Pilch wrote:

>=20
> The problem at the moment is that there is not a widefelt discontent =
with
> copyright in the software industry.  Which is why Samuelson, Kapor and
> Davis did not get much momentum behind their initiative.
>=20
> Now there is a strong patent movement outside of the software =
industry,
> but no strong "let's improve copyright" movement within.  A war =
between
> the two sides is making such discussions difficult. The copyright
> improvement movement could however have good chances, once we win the =
war.


There are several reasons why difficulties pointed by PHM don't provide =
a final argument:

  1.. There is no time left. Introduction the Manifesto like system as =
the EU regulation would take 2 years, as the WIPO or the WTO treaty even =
more.
  2.. Supporters of the contemporary US like patent system in Europe =
have lost. Their only chance was a decision taken by technocratic body =
as the EP Organization. The DG Market in Brussels can once more try to =
realize the plan but this time the attempt will be stopped in the =
Parliament or in the European Council.
  3.. The proposed by PHM writing down into the patent law of old =
European (in fact German) patentability conditions is neither good nor =
realizable. Not good because acceptance of "mean-and-function" approach =
was caused by complication of technology. Going back to the old doctrine =
and
  >     restrict[ing] patentability to new ways of directly using =
natural forces
  >         to achieve a result that cannot be validated by pure reason =
but
  >         only by experimentation
      would result in marginalization of patents everywhere. If such =
limits were observed (I doubt in enforcement), patents would have been =
granted only to simple technology solutions. It wouldn't be good. What's =
more, it could have cause successful backlash from those who oppose real =
modernization of the patent law.
  4.. The right answer to complications in technology should be =
"diversification of patent law", specialized (sui generis) IP laws for =
various fields of technology. There are many such specialized laws. The =
last one is proposed by the WIPO treaty on genetic traditional heritage. =
The most close to software needs are rules of specialized laws for =
semiconductors. All developed countries have such laws for chips. Why =
the legal status of software cannot be regulated in similar way?
  5.. The role of the Manifesto like law is not to replace software =
copyright. Although it is not starting from scratch and is taking over =
some aspects now covered by copyright. And transferring what is now =
covered in copyright by bizarre way into a natural for software =
professionals form. Moreover the new system is protecting useful methods =
and processes embodied in computer programs that are not protected by =
copyright. Introduction of such system would help in cutting pressure on =
patent system that is much better solution than advocated by PHM going =
back to the past.

Greg Aharonian wrote:

> >Why is why Samuelson, Kapor and Davis did not get much momentum =
behind
> >their initiative.
>=20
> There were many problems with their initiative.  For exameple, one =
part of
> their proposal was for government agencies to determine some =
reasonable
> amount of compensation for a commercial software product.  Given the
> government's general lack of experience and familiarity with =
commercializing
> products, this was a funny part of their proposal, more the bizarre
> because Kapor signed his name to something that totally conflicted =
with
> his 1-2-3 experiences.
>=20
> Second, they misrepresented the history of Xerox and Apple/Jobs, in
> order to create a problem they could solve with their sui generis
> proposal.
>=20
> Their proposal went nowhere because it was and still is a bad =
solution.
>=20

Greg, you are writing on trivialities. Moreover, you are distorting the =
facts. Samuelson was many times during the Lotus v. Borland saga on the =
Borland's side. Kapor's behavior means only that he is much more as a =
stupid salesman. It isn't true that the Manifesto was taken aside =
because its shortcomings. It has happen because some interest were in =
danger. And it is Europe's role to give the Manifesto the second life.

Jozef Halbersztadt

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<P><FONT face=3DArial size=3D2>Hartmut Pilch wrote:</FONT></P>
<P><FONT face=3DArial size=3D2>&gt; <BR>&gt; The problem at the moment =
is that there=20
is not a widefelt discontent with<BR>&gt; copyright in the software=20
industry.&nbsp; Which is why Samuelson, Kapor and<BR>&gt; Davis did not =
get much=20
momentum behind their initiative.<BR>&gt; <BR></FONT><FONT face=3DArial=20
size=3D2>&gt; Now there is a strong patent movement outside of the =
software=20
industry,<BR>&gt; but no strong "let's improve copyright" movement =
within.&nbsp;=20
A war between<BR>&gt; the two sides is making such discussions =
difficult. The=20
copyright<BR>&gt; improvement movement could however have good chances, =
once we=20
win the war.<BR></FONT></P>
<P><FONT face=3DArial size=3D2>There are several reasons why =
difficulties pointed by=20
PHM don't provide a final argument:</FONT></P>
<OL>
  <LI><FONT face=3DArial size=3D2>There is no time left. Introduction =
the Manifesto=20
  like system as the EU regulation would take 2 years, as the WIPO or =
the WTO=20
  treaty even more.</FONT></LI>
  <LI><FONT face=3DArial size=3D2>Supporters of the contemporary US like =
patent=20
  system in Europe have lost. Their only chance was a decision taken by=20
  technocratic body as the EP Organization. The DG Market in Brussels =
can once=20
  more try to realize the plan but this time the attempt will be stopped =
in the=20
  Parliament or in the European Council.</FONT></LI>
  <LI><FONT face=3DArial size=3D2>The proposed by PHM writing down into =
the patent=20
  law of old European (in fact German) patentability conditions is =
neither good=20
  nor realizable. Not good because acceptance of "mean-and-function" =
approach=20
  was caused by complication of technology. Going back to the old =
doctrine=20
  and<BR>&gt;&nbsp;&nbsp;&nbsp;&nbsp; restrict[ing] patentability to new =
ways of=20
  directly using natural forces<BR>&gt;=20
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to achieve a result that =
cannot be=20
  validated by pure reason but<BR>&gt;=20
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; only by=20
  experimentation<BR>&nbsp;&nbsp;&nbsp;&nbsp;would result in =
marginalization of=20
  patents everywhere. If such limits were observed (I doubt in <FONT=20
  size=3D2>enforcement</FONT>), patents would have been granted only to =
simple=20
  technology solutions. It wouldn't be good. What's more, it could have =
cause=20
  successful backlash from those who oppose real modernization of the =
patent=20
  law.</FONT></LI>
  <LI><FONT face=3DArial size=3D2>The right answer to complications in =
technology=20
  should be "diversification of patent law", specialized (sui generis) =
IP laws=20
  for various fields of technology. There are many such specialized =
laws. The=20
  last one is proposed by the WIPO treaty on genetic traditional =
heritage. The=20
  most close to software needs are rules of specialized laws for =
semiconductors.=20
  All developed countries have such laws for chips. Why the legal status =
of=20
  software cannot be regulated in similar way?</FONT></LI>
  <LI><FONT face=3DArial size=3D2>The role of the Manifesto like law is =
not to=20
  replace software copyright. Although it is not starting from scratch =
and is=20
  taking over some aspects now covered by copyright. And transferring =
what is=20
  now covered in copyright by bizarre way into a natural for software=20
  professionals form. Moreover the new system is protecting useful =
methods and=20
  processes embodied in computer programs that are not protected by =
copyright.=20
  Introduction of such system would help in cutting pressure on patent =
system=20
  that is much better solution than advocated by PHM going back to the=20
  past.</FONT></LI></OL>
<DIV><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV>
<DIV><FONT face=3DArial size=3D2>Greg Aharonian wrote:</FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT face=3DArial size=3D2>&gt; &gt;Why is why Samuelson, Kapor =
and Davis did=20
not get much momentum behind<BR>&gt; &gt;their initiative.<BR>&gt; =
<BR>&gt;=20
There were many problems with their initiative.&nbsp; For exameple, one =
part=20
of<BR>&gt; their proposal was for government agencies to determine some=20
reasonable<BR>&gt; amount of compensation for a commercial software=20
product.&nbsp; Given the<BR>&gt; government's general lack of experience =
and=20
familiarity with commercializing<BR>&gt; products, this was a funny part =
of=20
their proposal, more the bizarre<BR>&gt; because Kapor signed his name =
to=20
something that totally conflicted with<BR>&gt; his 1-2-3 =
experiences.<BR>&gt;=20
<BR>&gt; Second, they misrepresented the history of Xerox and =
Apple/Jobs,=20
in<BR>&gt; order to create a problem they could solve with their sui=20
generis<BR>&gt; proposal.<BR>&gt; <BR>&gt; Their proposal went nowhere =
because=20
it was and still is a bad solution.<BR>&gt; <BR></FONT></DIV>
<DIV><FONT face=3DArial size=3D2>Greg, you are writing on trivialities. =
Moreover,=20
you are distorting the facts. Samuelson was many times during the Lotus =
v.=20
Borland saga on the Borland's side. Kapor's behavior means only that he =
is much=20
more as a stupid salesman. It isn't true that the Manifesto was taken =
aside=20
because its shortcomings. It has happen because some interest were in =
danger.=20
And it is Europe's role to give the Manifesto the second =
life.</FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT face=3D"ARIAL CE" size=3D2>Jozef =
Halbersztadt</FONT></DIV></BODY></HTML>

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