[Patents] novelty and the anti-copycat affect

[phm@a2e.de (PILCH Hartmut)]

> > >So where will you draw the line in the future?  Pierre, where will the
> > >line between what is patentable, and not, be drawn?
> >
> > At least for software, the line is easy to draw - no software patents
> > on software ideas that are not new or are obvious variations of
>
> For software patents to be granted the patent offices must have access to
> the ACM Digital Library and understand what is there, as well as other
> publications and publication databases.
>
> Also they would need to be reviewed from a mathematical standpoint (is
> this simply an adoptaion of a known mathematical concept). This would
> require the patent examiner to have access to a database of mathematical
> publications.
>
> Apart from these academic databases they would have to have access to
> regular magazines and so forth so that they can search for stuff that has
> been published in industry.

Also, they would need a huge collection of time-stamped computer programs,
binary or source, that have been circulating in the public or widely sold
on the market.  Many of these programs constitute prior art with respect
to functionality claims, as are usually at the heart of software patents.

When talking to small companies about what they might want swpats for, the
usual answer is "to protect our new functionality from being imitated by a
competitor who has seen our demo program at the exhibition".  So in fact
even a demo program that didn't circulate but was shown at an exhibition
is prior art.

It needn't be noted that this reality is not quite in line with patent
theory:  patents should disclose information to the public that can not be
seen by just looking at a demo program.  Also it is clear that what these
companies would like to "protect" against copycatting is usually not even
novel, let alone an invention.  Most of this has been around before, but
the competitors don't know that yet, and I as a software vendor don't want
them to think for themselves or search old journals rather than go to my
exhibition booth and copycat me.  So what some people really want is a way
to enforce an ethical code of refraining from blatant copycatting, not a
system for "protecting" inventions.  Whether the copycatted feature is an
invention or not is beside the point.  It is copycat behaviour itself that
people feel more or less angry about. Again here, extended copyright, if
possible, would be more appropriate to those needs than the patent system.
And again, the anti-copycat affect is not a sound basis for creating a
legal system, because imitation, however shameless it may seem in some
cases, is not always detrimental to the economy as a whole.  Using the
patent system as the outlet for the anti-copycat affect is a double
misconception.

Well, these are by far not the only points where theory and practise are
out of sync in the patent system.

-phm