From phm@a2e.de  Mon May 21 14:57:56 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Mon, 21 May 2001 15:57:56 +0200 (CEST)
Subject: [Patents] Re: SW Protection via European Patents
In-Reply-To: <200105180427_MC2-D17F-926C@compuserve.com>
Message-ID: <Pine.LNX.4.31.0105211545001.2383-100000@querty.oas.a2e.de>

On Fri, 18 May 2001, Richard Abnett wrote:

> Keith Beresford's book is indeed required reading for anyone in this field.
>
> I have long felt that the rules on non-unity of invention which apply
> outside the USA are unreasonably restrictive for applicants.  They mean
> that the likelihood of successful protection becomes a lottery, dependent
> upon the accident of whether the attorney happens to claim the invention in
> such a way as to cover the direction of future development.  We have all
> handled cases where a patent could have supported valid infringed claims
> but limitations were included which were in fact not present in the
> infringement.

> There are enough problems for applicants, and for them to have to restrict
> themselves to just one independent claim, in my view, is weighing the dice
> too heavily in favour of third parties.

Actually this restriction is vital in order to prevent already dangerous
abuses of the patent system from further proliferating.

Under the Freeman-Walter-Abele test, pure mathematical abstractions such
as the Karmakar method have been patented, and in such situations
typically the patentee tries to list a potentially infinite number of
dependent claims geared to special applications, such as

	- plane scheduling
	- oil refinery
	- nutrition value calculation
	- ...

One way to keep a lid on this type of very harmful abuse of the patent
system is to allow only one application for each abstract invention.

Of course it would be even better to forbid abstract inventions, reverse
the Diamond v. Diehr verdict and return to the Gottschalk vs Benson
doctrine, which is close to the one that is still the basis of European
patent law.

> All IP is a compromise between what is reasonable to protect
> innovators/authors/designers on the one hand and clarity for third
> parties on the other. Allowing only one independent claim is not
> necessary for clarity and in practice does not unreasonably load
> Examiners - the USA copes with such a system perfectly adequately with
> a modest excess claim fee for independent claims beyond three. It fact
> the US goes beyond what I have in mind by allowing completely
> different inventions to be claimed in the same case.
>
> The present system plays into the hands of those with lots of money because
> they can achieve what they want by filing divisional applications.  Smaller
> companies can not afford to invest the vast sums necessary for this.

The whole patent system is bad for smaller companies.  The more patents
are granted, the worse the position of smaller companies.  If only a few
patents on some high-level inventions with physical substance and concrete
+ enforcable subject matters are granted, then it doesn't matter whether
you have money or not.  E.g. the inventor of the membranes that made the
hydrogen fuel cell possible is making a fortune that is nowhere comparable
to the investment in his patent or even in his research. This Mr. Balin
built his own company around the patent and is significantly slowing down
the spreading of this important future technology, but nonetheless the
case shows that sometimes valuable inventive efforts are in fact rewarded
by certain strong patents, and that in these cases it is not necessary to
be a big company in order to obtain and defend those patents.  But in the
case of mathematics, such strong patents simply do not exist.  Even the
Karmakar patent, which was about an epoch-making mathematical method with
a great application potential, eventually resulted in commercial failure
(together with huge blood-letting by the whole linear planning community).

> The time has come for a re-evaluation of the non-unity rules.  This is
> something where perhaps the rest of the world can respect that the US has
> got it (more nearly) right!

No.
This is something where the rest of the world might want to respect that
the Japanese practise of cutting patents into pieces is a sound one.

--
Hartmut Pilch
Federation for a Free Information Infrastructure        http://www.ffii.org/
For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/



