[Patents] Why Greg Aharonian is wrong

[phm@a2e.de (PILCH Hartmut)]

> I am going to contest two main thesis of Greg Aharonian. He claims
> that patent offices can work better. He claims too that in all fields
> of technology there are problems with patents. Patent offices can work
> better as the US PTO works, because work of the PTO is often a
> disaster. The proposed by Greg remedies were from start applied in the
> EPO. In the EPO examiners have smaller load as in the PTO, higher
> wages, better databases and even better procedures (publication before
> granting). The result cannot be ignored. For example look for a rough
> analysis of Altavista indexing patents: 30+ were granted in the US, 2
> were granted in the EPO.

At the moment it seems that the USPTO receives more applications.
E.g. in the CGMI/Altavista case, I don't know of any applications that
were accepted by the USPTO but *rejected* by the EPO.  Either there
was no application, or it is still in the backlog waiting to be examined.

> Nevertheless, it does not make difference big enough.

By looking at the patent database I have so far failed to see any
difference at all.  You will probably have to look with a microscope
to find that difference.

One reason may of course be that the EPO is more tolerant on inventive
step aka non-obviousness.  The Saikine study and several other ones
suggest that, and it seems to be common knowledge among patent
practitioners that you get the most generous and broadest patents
in Europe, compared to US and JP.  Also thanks to the equivalence
doctrine and to the separation of infringement proceedings from invalidity
procedings.

> Why, because any patent office grants as a rule and rejects as an
> exception. Alternative approach is unrealizable. Do you think that a
> public institution that rejects 90% applications can survive?

Well, they wouldn't get so many applications if they were stricter.
One software entrepreneur with close affinity to the patent system told me
that he patents every shade of an idea, even when his patent lawyer tells
him "no, this is obvious" or "no, this is not patentable".  He then
answers: "let's wait and see".  And, he told me proudly, "the EPO always
grants it".  If the EPO was stricter, he would of course not adopt the
"wait and see" approach, since this costs a few 1000 EUR.

> This proposal is very important. It is moving software patenting from
> field of fiction to the field of professional analysis. It doesn't
> eliminate disliked by participants of this debate paradigm of awards
> due to priority. But as I understand nobody on this list is opposing a
> system that is neutral to the division open/closed source.

It is true that the patent system is biased against free/opensource/public
software and that this alone is a sufficient reason to reject it.
Special consideration for the public nature of information and the
division between free and proprietary must be given by any IP system
that wants to seriously address the problems of the IT sector.

Yet I think even if this consideration is paid, most people on this list
will also be quite critical toward any attempt to restrict the development
of proprietary software.  Some would say that anything beyond copyright is
impractical and dangerous, others would say that any ownership of abstract
concepts, if allowed, must be short-termed and must have sufficiently high
difficulty standards so as to make it unlikely that other people will
invent the same method independently without much effort within the term
of the property right.  Thus in any case the balance of difficulty vs
monpoly duration is crucial, if such a system is to find any acceptance
among those who are concerned about the well-being of the IT industry.
And this balance is very hard to achieve by any system that is to be
realistically maintainable under the constraints of real-life law and
society.

> It is important to realize that thanks compulsory licenses, thanks
> treating code as language the proposed register system can be easy
> revised to accommodate open source needs. Only the license have to be
> slightly different for open source applications. That is why Eurolinux
> is mentioning the proposal in the letter to the European Commission.:
> "In case special anti-cloning protection is really demanded by the
> software industry, as the DGIM claims in its invitation paper, Mark
> Paley's Model Software Patent Act could provide a useful source of
> inspiration." More: http://www.eurolinux.org/news/pr0101/dgltr

Yes, this is worth exploration.
I am myself not yet sure to what extent Mark Paley has found solutions
to the difficulty vs duration problem as well as to the private/public
duality of information works.

> The Software Patent Act should be put forward vigorously. It would
> eliminate 90% of silly software patents. Europe should give the
> proposal the second life. It is fully compatible with TRIPS. Any
> challenge by the US government in the WTO would end with a failure.

Of course even a copyright-only appoach is fully compatible with TRIPS.
At least if it is well formulated and Europe firmly stands behind it.
However what Kolle

        http://swpat.ffii.org/vreji/papri/grur-kolle77/

called the "nobody's land of intellectual property", i.e. the realm of
abstract-logical innovation, may have to become fortified with some
buildings such as Sui Generis rights, so that the appetite of patent
lawyers and the eternal gold-digger's dream may find a well-designed and
well-balanced system to study and utilize, rather than just an empty land
that seems to be calling for encroachment.

-phm