From phm@a2e.de  Fri Feb  9 20:32:08 2001
Date: Fri, 9 Feb 2001 21:32:08 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Re: How Bessen's paper is being distorted

Someone distorted Bessen's paper:

> Jim Bessen in a recent comment clearly states the limited scope of the
> conclusions of his paper that have been distorted in this forum:
>
>     - that software patents to date have not a negative impact

"not yet a *substantial* negative impact".  you misquote.

>     - that the software industry has not been damaged by software patents

not yet substantially.  you reiterate.

>     - that software patents are not bad

not bad by some ethical principle but rather to be judged for their
merits.

> So anyone using their paper to argue differently is being unethical.

Anyone who misrepresents their paper ... is being ...

> To date, software patents have been litigated to the same percentage
> levels as have patents in other fields of technology.

Again, the comparison to "other fields of technology" is irrelevant.

> >We did not try to show that the software industry has been damaged by
> >software patents. We showed that the firms obtaining most of the software
> >patents (and this is a small subset) did not increase their R&D as the
> >standard pro-patent argument alleges.
>
> So what?  That is just one of the pro-patent arguments.  There are many
> others, you provided no context for your subset conclusion. Here's another
> as acasual argument as yours - in the period from 1992 to 1998 when over
> 50,000 software patents issued, the software dominated NASDAQ rose
> tremendously in value with the participation of many of the companies
> getting the bulk of the software patents, as well as many of the companies

Your "acausal argument" it is not an argument at all.  Even supposing that
lots of companies succeeded in attracting investment using software
patents, this does not mean that the public got more software R&D on the
whole than it would if there had been no software patents.

> I will agree with you that arguments good or bad linking patents to
> R&D investment levels aren't worth much.

Certain kinds of linking, like the one proposed by you, aren't worth much.
Others are.  If those companies that get a lot of patents don't produce a
lot of value in terms of innovative ideas, then the system isn't working.

> There is no decent risk of decreased innovation in the future.  Find me
> some data that even suggests that.

What about the fact that there are nx10000 software patents out there on
which any software company is likely to infringe?  The fact that this
greatly increases the legal risks for small companies?  The fact that some
companies, aware of these risks, are already creating reserve funds to
cope with them?  The fact that the money in these reserve funds is drawn
away from R&D money?

> And with regards to subsidies, large corporations get far larger ones
> than those due to patents.

Again beside the point.
That a problem exists elswhere is no reason not to solve it.

> >But I think our paper does make a good case against the "stronger
> >patents are always better" school. This has been the main argument of
> >the pro-patent forces in Europe and these forces have largely avoided
> >empirical arguments. As you know, these people squashed Brian Kahin's
> >study of software patent quality. This was my point to Francois.
>
> IBM quashed Kahin's study.  IBM and Microsoft rendered the Software
> Patent Institute a joke.  I wouldn't be surprised that IBM is a secret
> investor in BountyQuest.  Which should make everyone applauding IBM's
> commitment to Linux very wary.

All this is completely unrelated to what Jim wrote above. One American
patent buster dislikes other American patent busters, calls his
competitors a joke.  OK, but why should that interest us?  What is the
relation to the European pro-patent forces?

> But I think you misrepresent the pro-patent forces in Europe.  They
> want to drop 52.2.C mostly to not have to waste years of court
> decisions (like we did in the US) to arrive at where they already are:
> with enough connections to the real world, most software patent
> applications are sufficiently technical and applied to be patentable,

Yes, according to the legal theory of these people, which is not in line
with current European law.  "Technical" has a special meaning in European
jurisprudence.  Otherwise of course social engineering would also be
sufficiently technical.  As would film making, composing or philosophy.
All these have some implementational aspects which are colloquially called
"technical".   But in European patent jurisprudence, "technical" does not
mean "implementational" or "functional" but "physical", "related to the
direct use of natural forces to achieve a physically and not logically
validatable effect".

> and not considered to be just "computer programs".

The solutions being patented are nothing but computer programs.  Some even
make direct references to CORBA or JAVA in the claims.  Even those claims
that are worded differently so as to dress the "invention" up as a process
referring to the use of natural forces (such as putting ink on paper when
printing of cooking recipes in a super market) can easily be demasked as
non-technical and referring to a programming solution.

> >You have raised another argument, that software IP should not be treated
> >differently from other fields. You have a point, but given that patents are
> >also screwed up in other fields, I am not sure this alone provides a
> >convincing reason for Europe to change its statute  .......
>
> Sure it is a good reason to change the law.  First, change the law to
> fully integrate software patenting into the system,

There is no reason to integrate anything into it that is not proven to be
beneficial.

> and then work on improving the quality of patent examination
> procedures across all areas of technology.

"First fully spread the disease and then work on improving the quality of
my malfunctioning medicine."
Nice apothecary logic.  What makes it even nicer is that we have on this
list already reached the consensus that lack of novelty is not the
problem.  Lack of inventivity is more of a problem, and there is no way to
solve it within the legal framework of the patent system.  See

	http://swpat.ffii.org/stidi/frili/

Greg knows this perfectly well and did not contradict the authority of
Steve Probert, who told us on this list and who is quoted in the above
article.  Moreover, lack of inventiveness is closely related to the
softening of the "technicalness / technicity" criterion.  Programming
solutions, as all other solutions that do not require validation by
experimentation with physical forces, are on the average much easier to
find than new physical solutions.

> If you got rid of most of the crappy patents issuing in
> all fields, not just software, many of the arguments on lists like this
> would go away.

You know very well that the novelty test does not suffice to get rid of
most crappy patents.  You also know that you have been applying it for 7
years and didn't succeed in curing the disease.

> It is why I have been arguing for years to improve the
> quality of patent examination processes.  I have no problem with the
> theoretical basis of the current system, and I like systems that are
> consistent and well formed (which "computer programs" in 52.2.C isn't),

What is consistent about discriminating against social engineering?
What is consistent about establishing copyright and then practically
denying people's right to their own works?
What is consistend about establishing freedom of expression and then
denying people's right to publish written expression?
How can it be consistent to confer the same 20 year monopoly for such
different things, in economic terms, as a new drug and a new programming
idea?

What about all the inconsistencies analysed in

	http://www.freepatents.org/adapt/useright/

?

Even if the system was consistent, imposing constraints on people just for
the sake of the aesthetical values of some system you happen to care for
personally, is the mindset behind all many crimes against humanity.
Some great leaders whose mentioning usually ends a news thread were such
"social aestheticists".

> but I do have problems with the implementation of the current system,
> and want to see it fixed.  I do not think that is an unreasonable position
> to keep on arguing, despite Hartmut's many insults.

Your desire to reform and improve the methods of the health administration
is neither unreasonable nor unethical.
But your eagerness to spread the disease at a moment where evidently the
health authorities can't cope with it is an entirely different matter.

-phm











