From phm@a2e.de  Fri Apr 27 21:18:19 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Fri, 27 Apr 2001 22:18:19 +0200 (CEST)
Subject: [Patents] Re: World Intellectual Property Day is April 26,
 2001
In-Reply-To: <200104272000.QAA15451@world.std.com>
Message-ID: <Pine.LNX.4.33.0104272205350.19386-100000@mulix.oas.a2e.de>

> >Copyright is the formula for combining them.
>
> One of the reasons why the number of software patent filings is rising
> so much in both America and Europe over the last decade is the
> recognition that copyright is increasingly useless for protecting, in
> a controlling manner, software.  Classic big cases, such as Lotus and
> Apple, copyright for software suffered greatly.

This has been well argued by Ramon Garcia before.
The Lotus and Apple cases in fact show that copyright is a very strong
tool, so strong that occasionally it must be waived in favor of other
considerations such as interoperability.  Interface copyright creates
network externalities that work against a free market.

This should apply even more to patents.  If copyright occasionally goes to
far so that courts have to waive some of the protection it offers, then
software patents should not be granted at all, because they are primarily
used as means of the kind of abusive competition that prompted the courts
to waive copyright in the Apple/Lotus case.

> And where it does offer very limited protection, copyright's 100+
> year term of protection is much longer than patent's 20 years, so I
> find it strange you arguing for a longer loss of freedom due to
> copyrights.

Copyright is the right to one's own works while patents constitute a right
to exclude others.  You could say that copyright constitutes 'intellectual
property' while patents constitute 'intellectual expropriation'.  I don't
really like either term, because we are not talking about the mind
(intellect) but only about objectivised information.

The validity term of copyright is almost irrelevant in the software world.
It would create no harm even if it lasted for 1000 years.

Software patents are like patents on a line of argumentation.  Of course
it might be interesting for me to exclude you from using my arguments in a
debate with someone else.  It might also be very interesting for Mr.
Micahel G. Smith's lawfirm to exclude competing patent lawyers from using
arguments that they made in court.  Having a monopoly on lines of
argumentation would mean a marvelous "protection" for their lawfirm.  And
it would incite innovation by forcing others to invent around those
aruments, wouldn't it.  I think this kind of protection would even be
feasible under current EPO doctrine.  Structures of argumentation are
"practical and repeatable solutions", and of course you don't protect the
arguments as such but only their practical application in the patent
industry.

The question however is whether society should grant such monopolies.
I don't believe that the patent lawyers on this discussion list would
agree, if they were treated by the EPO in the same way in which the EPO
treats us programmers.

-phm



