[Patents] Onces more on Samuelson/Davis/Kapor/Reichman Manifesto

[Jozef Halbersztadt halber@timsi.com.pl]

Hartmut Pilch wrote:

> 
> 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.
> 
> 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.
> 
> 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 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

Hartmut Pilch wrote:

>
> 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.
>
> 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.
>
> 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 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