From phm@a2e.de  Fri Feb  9 19:50:22 2001
Date: Fri, 9 Feb 2001 20:50:22 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Ones more on Samuelson/Davis/Kapor/Reichman Manifesto

J. Halbersztadt wrote:

>  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.

We'd need a sample of random EP patents to show the results of this
approach, e.g. numbers 823100-823200.  I might want to do that.  I don't
think the result would be so huge.  Probably the above rule would
eliminate a large portion of the trivial patents and of those with abusive
function claims within that section but leave almost all the pharmacy,
chemistry and even bio patents. If we want trivial mechanical patents, we
can of course finetune my rule so as to allow them.  Perhaps for a
transition period or so, because I couldn't think of good reasons for
allowing them on the long term.  In the long run anything that does not
provide a new way of directly using natural forces with a physical effect
validatable by experimentation should be taken out of the patent system
and, where necessary, put into some sui generis system.

>   4.. The right answer to complications in technology should be
> "diversification of patent law", specialized (sui generis) IP laws for
> various fields of technology.

Exactly:  taking logical stuff out of the patent system and, where
justifiable, putting it into sui generis systems.

> There are many such specialized laws.

Yes, utility certificate, ...

> 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.

My "going back to the past" has the following effects

- the patent system is cut back to its legitimate core
- although TRIPS 27 is strictly observed, freedom is won back
- the freedom can be used to create the sui generis systems you propose

> Greg Aharonian wrote:
>
> > >Why is why Samuelson, Kapor and Davis did not get much momentum behind
> > >their initiative.
> >
> > 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.
> >
> > Second, they misrepresented the history of Xerox and Apple/Jobs, in
> > order to create a problem they could solve with their sui generis
> > proposal.
> >
> > Their proposal went nowhere because it was and still is a bad solution.
> >
>
> 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

You mean to say "much more than just a stupid salesman" ?

> 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.

I have not read the manifesto thouroughly enough to appreciate your and
Greg's viewpoints.  However I'd be surprised if its inherent qualities was
the deciding factor that determined the degree of support it received.
Usually in politics this is not the case.  You first have to look at the
bandwagons that are pushing arguments to the forefront.

For the Eurolinux proposal of returning to a strict definition of
"technical" and "invention" (direct use of natural forces ...) the same is
true.  It is good enough to gain wholehearted support among a limited
number of specialists.  Whether it will achieve more than that depends
very much on factors beyond our control.

-phm






