From phm@a2e.de  Sat Jun  2 16:44:00 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sat, 2 Jun 2001 17:44:00 +0200 (CEST)
Subject: [Patents] Re: Konno 1995: The Karmarkar patent and Software -- does math
 patenting work?
In-Reply-To: <B73E8384.BF9%diwag@pingnet.ch>
Message-ID: <Pine.LNX.4.33.0106021719320.10211-100000@mulix.oas.a2e.de>

> Is writing music or a book such a significant effort which explains
> why legal protection is 10 time longer? I explain: the protection of
> patent is limited on 20 years, which in reallity is 10 years, since
> the first 10 years are used for technical and marketing development?
> piece of music are protected untill 70 Years after the death of the
> author.

You can perhaps get patents on musical ideas nowadays, if you dress them
up as processes, having the technical effect that strings of musical
instruments are put into vibration.  They are most certainly "practical
and repeatable problem solutions" (according to EPO doctrine on
patentability, see http://swpat.ffii.org/vreji/papri/jwip-schar98/).

However, traditionally, there was no "protection" at all for such ideas.

As soon as Schoenberg came up with 12-tone music, many composers all over
the world started writing 12-tone music without having to negotiate for a
permission to do so.

Nobody would dispute that coming up with new musical composition
techniques, new mathematical ideas or many other new constructions of a
mental/logical/non-technical type can require a significant effort and
talent.

Nevertheless patents are not available for these kinds of ideas, but only
for the technical realm.

One often cited reason for this is:  in order to be able to use new
technical ideas, you usually need new equipment or even a large
manufacturing apparatus of which few people dispose.  This is not true for
new mental/logical/non-technical ideas.  To put an algorithm or a music
construction scheme into practise, you just need a skilled human intellect
and perhaps some standard accessories such as a universal computer.

In the non-technical area there is a much higher "need for keeping ideas
free" (Freihaltungsbeduerfnis) than in the technical area, where ideas are
generally tied to external material objects.

This is written in standard manuals of patent law, such as

	Bernhardt & Krasser 1986
	http://swpat.ffii.org/vreji/papri/krasser86/

There is nothing new or surprising about this.  These thoughts even have
for a long time had a status of undisputed customary law throughout the
world.

> > re: There should be a balance between
> > innovation, competition, standardization and incentives for research.

> How do you want to explain that in the patent law and enforce it?

This was answered here before and is also answered in the above-cited
manual of patent law:  it is difficult to translate this balance into
practise (i.e. into rules for non-obviousness), but difficulty of
realisation is not an excuse for not trying one's best.  Patent Offices
must find rules that separate the ordinary solution (that would have
occurred to the average (to some extent creative) specialist in the normal
course of solving new problems as they are posed by new market demands)
from the true invention that needs patent protection.

The EPO and USPTO are not only not trying their best, they even seem to
have completely forgotten what their mission is.  As a former president of
the USPTO used to say:  "We are the patent office, not the patent
prevention office".  Which reminds me of what Mr. Raible said about the
Prussian patent system.  The prussians apparently had a patent office that
did its job. The Office is a public servant, not a servant of patent
applicants.  Patent applicants hire an attorney, and the public is
represented by the patent office, whose job it is to strike the best deal
for the public.

There have been times when this was so even in the US. During the debates
in the 60s in the US, it was the US Patent Office which most vehemently
and clearly opposed calls to make computer programs patentable.

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



