[Patents] Re: difficulty vs technicity

[ramon@jl1.quim.ucm.es (Ram'on Garc'ia Fern'andez)]

On Mon, Apr 30, 2001 at 12:17:52AM +0200, PILCH Hartmut wrote:
> > Suppose that the patent system actually worked well, that is, patents
> > were granted only on reasonable relevant inventions. Would you agree
> > with software patents?
> 
> To achieve that, the rules would have to be different than in the current
> patent system.  You could no longer call that "patents".  And it is
> impossible within the current framework of law to reform the whole patent
> system to conform to those rules.  The question can therefore only be

That would be what the public and many politicians expect patents to be.

I do not think that the problem would be the law, or international
treaties.  That treaties can be interpreted (like the "non-obvious"
:-) ). I do not think that European Commissioners would be so silly as
to consider a treaty more important that European interests. Treaties
are to serve interests, not otherwise. My experience is that the strong
point of patents is that the public assumes that something patentable
must be difficult. This is what the common sense says. This is even
what the common sense of patent examiners say (ask Steve Probert :-) ).
As soon as this point is shown, patent supporters become very weak,
as you observed in this mailing list.

I do not think that the heart of the problem is legal or technical.
The heart of the problem is human. That sounds strange, but please
bear with me.

If you look around, you will find many places where qualitative
requirements work well, and many places where they don't. For example,
the decision of granting a license to a commercial radio station does
not work well, because it is usually based in the political affinity
of the station with the current government. The process of hiring in
Spanish universities ... well I will keep my mouth shut. The process
of granting funds to a research project works very well in Spain. The
government commissions the evaluation of a project to scientists that
are doing research in the same area. They are uncommonly fair.

Do you see a common pattern?

Whatever law you put, it can be fairly interpreted according to the
interest of the interpreter.

In the case of patent offices, some of them get their funds from
patent taxes. That is the case of the USPTO or the EPO. No surprise
they grant lots of trivial patents. In other cases, it is in their
indirect interest. The more patents, the more resources assigned, more
personal, more power and so on. If you have worked in any large
organization, this behaviour of self-justitication should not be new
for you.

For that reason, it is not smart to pretend that patent offices would
work better with better prior art and better resources. Placing higher
legal requirements would not improve their work, except that courts
would reject many of these patents and in the long term there would be
less applications.

I have to agree with you that any change will be very difficult. It
will be boycotted by patent offices and patent lawyers. But that does
not mean that it will be impossible. It means that plenty of political
will and conscience in the industry is necessary.

Ramon