[Patents] real protection needs vs cathedral ideology

[phm@a2e.de (PILCH Hartmut)]

Jozef Halbersztadt wrote:

> Jean-Paul Smets and others study for the French government is important in
> two respects. Firstly, it is making the politicians aware (I hope) that
> there are any legal obstacles to take by Europe and France an independent
        ^^^^^^^

Did you mean "aren't any" ?

> position as concerns patenting of software.

> It is also presenting arguments why it is in interest of European and
> French software industry. This aspect of the study is developing in
> details argument that arrived to Europe in Lawrence Lessig article:"
> .... Europe should wait. Legislation needs a better reason than that
> lawyers like it, and that America does it."
> http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT36QMGXJAC&live=true

> The second aspect of the raport_brevet is important as well. And it is even
> less "new". The study is proposing solutions from the controversy. The one
> of the proposed is the sui generis system for protection of software.

> "We believe that a sui generis right by which to protect intangible
> inventions is the best possible solution for Europe. Therefore, we
> recommend that the exception for computer programmes be kept, and that
> clear limits to the current patenting system be set. More especially,
> we propose to make a constructive definition of the terms "invention"
> and "technical effect".

> This is also a clear invitation to return to the law and to the
> doctrine of the Dispositionsprogramm decision.

> The practical measures proposed in the French study system are almost
> identical to proposals developed not many years ago in the US. They
> are similar to the implementation of famous Manifesto 1994 in the
> Model Software Petite Patent Act by Mark Paley Act.
> http://members.aol.com/paleymark/ModelAct.htm

> The details could be discussed. For example raised by me question
> whether would not be reasonable to append the Software Act's petite
> patent law onto the copyright regulations, where software currently
> receives its greatest protection anyway.
> http://swpat.ffii.org/penmi/linuxtag-2001/jh/

> But it is strange that in Germany, in the country of Helmut
> Oehlschlegel, a father of the first sui generis proposal (Sollen und
> koennen Rechenprogramme geschuetzt werden?, GRUR 1965, 465-468) is
> needed an intellectual import from France and Poland to notice that we
> are not without an alternative.

See also the final sentence of the Dispsositionsprogramm decision:
"whether it can be protected by some other means, such as copyright or
competition law, is beyond the scope of our discussion".

        http://swpat.ffii.org/vreji/papri/bgh-dispo76/

What applies to a prudent lawcourt needn't apply to a research report. It
would have been interesting to discuss this subject within the ISI/MPI
study just as it was discussed in the Corp-des-Mines study.

>From the legal part written by MPI, as prepublished so far (you also heard
Mr. Nack's statement at the Linuxtag seminar, which was in fact taken from
that study), the only reason they give for allowing software patents is in
fact, somewhat simplified, "that lawyers like it and that America does
it".  There seem to be no case studies of hard-to-find algorithms where
any monopoly incentive beyond what current copyright and other
conventional mechanisms offer could be deemed desirable.

Even the French study does not really establish such cases.  I don't doubt
that they could exist, but at least the urge to do something for those
cases does not seem to be very real.  Even some pro-patent advocates such
as Baumann & Beyer, who founded a small company
(http://www.active-knowledge.de) based on software patents obtained as a
result of university research work, do not really explain where their
great achievement lies and why it wouldn't be fair to ask them to operate
in the normal marketing/copyright-based software market like everybody
else and put university research work into the public domain.

These university businessmen seem to be motivated by some other factors
than a real need for extra protection.  They have climbed a social ladder
for a few decades and are now fighting against a tide of open source
software that seems to be bringing bazaar anarchy and taking the
well-deserved control out of their hands.  Part of this is their utopia of
"software engineering" by some magic cathedral approach which has never
worked and whose failure the authors of these utopias tend to blame on the
lack of control that copyright offers them over their projects. The
strange thing here is that they have had the chance to put all these
things into practise in their university haven.  But, strangely enough,
the more successful university projects are carried out in a bazaar-like
open-source manner.

I have asked Mr. Baumann and others these questions and tried to find out
where their great achievement lies for which they need patents.  In Berlin
on 2000-05-18, Greg, after listening to PA Markus Hoessle's report on the
"multi-dimensional b-tree" patent of Beyer (one of those on which
active-knowledge.de is built), actually said that he knows some rather old
prior art that could invalidate that patent.

The name "active-knowledge" itself is very revealing, too.  It shows
clearer than the Dispositionsprogramm decision that these people are
trying to patent the human mind, whose normal prolongation is the
universal computer.

While I think that any real need of greater protection of investments
should be taken seriously and approaches such as sui generis rights should
be considered as a means of addressing these needs, I am still waiting to
have a few cases of such needs reported and well documented, rather than
just used as pretexts for pushing the ageing and entrepreneurially
untalented informaticist's dream of social control and wealth.

In such a study, it would also be enlightening to find out, whether there
are some areas where a cathedral model, which seems to generate an
interest in tighter control, is really productive.  The cultural clash
between the two models must be taken into account and separated from the
arguments which various sides propose.

So far Fraunhofer ISI has produced several studies for the Ministery of
Education and Research (BMBF) that somewhat monotonously advocate this
cathedral model and, without much critical reflexion, regularly claim that
this model should be promoted and strengthened by means of patents.  This
is of course not a big surprise, because the fhg.de (Fraunhofer society)
is very closely associated both to the cathedral model and to the patent
system in Germany.  It is more a surprise to see that the researchers at
isi.fhg.de seem to have detached themselves from that ideology to a
certain degree.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/