[Patents] Bessen & Maskin reply on software patent paper

[PILCH Hartmut phm@a2e.de]

Thank you for the refreshing words.  I hope very much that Greg's readers
will get to read an unabridged version.

> Although some Europeans are opposed to software patents of any kind,
> much of what we hear is really a much more balanced view.

Maybe I am one of the people with unbalanced view.  My view is also shared
by most of the earlier European patent law literature from 1970 to 1990
and by some excellent recent articles from patent examiners who lost their
mental balance after having been immerged in software patent applications
and in fishy arguments about why these should be legal under the existing
European laws.

We translated one of these articles to English:

        http://swpat.ffii.org/vreji/papri/patpruef/

others are in the pipeline.  Those who argue the case for changing the
earlier doctrine (dominant until around 1990 and still vigorously defended
by the German Federal Patent Court) do not have any sound legal arguments,
and their economic arguments are based on Todd Dickinson's simplistic
model.  There is really nothing of intellectual weight that could tilt the
balance toward software patenting.  But once the balance is titlted, the
system becomes chaotic, both in legal theory and in practical
consequences.

> Many people suggest that software should have patent protection in
> Europe, but perhaps with some limitations, e.g. a term shorter than 20
> years, or limits on the prohibition against private use of patented
> ideas (like "fair use" in copyright). These suggestions provide a
> refreshing and balanced alternative to the "stronger is better" reflex
> one encounters in the U.S.

Imho these suggestions are based on a lack of understanding.

(1) Art 32 TRIPS prohibits any fiddling with the number of years.
    That is not an option.  At least not in the current debate, which
    is about determining the correct legal doctrine for patentability
    and enacting it into a directive and into the European Patent
    Convention.  If there can be any discussion at all about somehow
    improving the patent system and adapting it to software, then this
    must be a discussion about a new system outside of the patent system.
    Such as I have summarized under

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

    There is not really very much of a need to go beyond copyright.  The
    current drive for patents is not a drive of people dissatisfied with
    copyright but the drive of a large movement of patent lawyers who are
    well entrenched in lawcourts, big business and government and see no
    reason why they shouldn't use that power in order to further expand
    it.

(2) Also there are all kinds of compromise proposals, which are worthless,
    because it is not anyone with political power who is offering to
    compromise.  And it is quite difficult to compromise.  There are
    basically two alternatives:

    (a) restrict patentability to new ways of directly using natural forces
        to achieve a result that cannot be validated by pure reason but
        only by experimentation
    (b) "restrict" patentability to functional parts of structures that
        use natural forces

    The first is Europe's older doctrine.  The second is what the EPO
    wants and it is basically also what the USPTO advocates, even after
    the State Street decision.  It means no restriction at all, because
    almost anything is a functional part of a physical structure.  Even
    a new musical composition technique can be conceived of as a
    functional part of a tune playing machine that consumes energy and
    perhaps even stimulates the milk production of cows.

I see no way of compromising between the two above doctrines.  Nobody has
even come up with a compromise proposal.  And, as far as I can see, those
who advocate doctrine (a) also understand doctrine (b), but the opposite
is not the case. The drive for software patentability resulting from
doctrine (b) in the last few years is based on ignorance and greed.  As so
often in society, there is a negative selection process which drives the
ignorants to the forefront and makes them leaders of a party.  In this
case of a party that has lots of money on its side and is very active in
the dark but quite silent in public.  There is a bandwagon running for
expansion of the patent system, and those who dream of riding on that
bandwagon are eager to avoid fuelling any discussion.  Which is also why
the Manifesto of Samuelson, Kapor etc did not find a great resonance:
On the one hand, only very few in the software industry feel a need to
go beyond copyright, on the other those who want to impose the patent
systme don't give a damn about the needs of the software industry.

> Most refreshing is that Europe is having a public discussion of this
> important policy issue at all, even if it does mean that some
> incorrect views get expressed.

The powers in charge at the EPO and the EU do everything to avoid a public
discussion.  They have not learnt to discuss these issues in any other
terms than in those of legal doctrine, and they have neither mastered
doctrine (a) nor would they dare to promote it, since it is contrary to
the decisions of a few high courts and a peer opinion which they see as an
absolutely binding authority.  Meanwhile there is clear evidence showing
that the very decisions of these courts are based on lobbying by the
patent departments of Siemens and IBM and on faulty reasoning.

Currently, the governments are handing the issue to their patent lawyers,
and the patent lawyers keep strict silence, while secretely encouraging
the colleagues at the European Commission to go ahead and take the blame.
They will probably do it, because they have not been trained to do
anything else but cut and paste verdicts from authoritative courts.  When
people get angry with the result, the national governments will point to
the constraints of Europeanisation and globalisation.  Pushing decisions
to the level that is least accountable is a common tactic.

> It is easy for us to forget that the current U.S. arrangement was
> largely the result of court decisions that were handed down with
> little discussion and no public review.

This is what our governments and the European Commission would like to do.
The only difference to the U.S. is that we have a grassroots movement
against this, to which the press is sympathetic.  Of course this
grassroots movement does not take "balanced views" but points its fingers
directly into the wounds.  The biggest wound is a pile of shit (sorry for
the expression) produced by the European Patent Offices, consisting of
30000 software patents which are an insult to the mind of any person with
an average understanding for software

        http://swpat.ffii.org/vreji/pikta/

Caligula said "pecunia non olet" -- money doesn't stink.
The EPO, the EU Commission and our governments are trying to emulate
Caligula.
We will not let them get away with it.

> It is hard to predict the impact of the large number of software
> patents issued. Perhaps in the future, software startups will have to
> pay an "IBM tax" and a "Hitachi tax" and a "Xerox tax" etc. to avoid
> litigation. Perhaps also contingency-fee lawyers will become more
> active in this field, raising the level of uncertainty. These could be
> significant liabilities to the U.S. software industry. Many Europeans
> recognize that they may gain some competitive advantage with a more
> balanced policy.

Balanced in the sense of "balance between monopoly rights and freedom".
I agree that conferring limited monopoly rights can be a useful tool of
economic policy.

-phm