[Patents] Re: Two other patent aspects (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Sun, 29 Jul 2001 09:44:43 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
To: intprop-l@topica.com
Subject: Re: Two other patent aspects

> > (a) a patent has a relatively short lifespan;
>
>   It is just right: It keep at bay pharmaceutical companies, who whish
> patents to be enforced indefinitely and owners of method-creating  patents.
> It force people  to think faster- nobody wants to wait for 20 years. It
> spoor creativity and provide additional leverage when negotiating for
> commercial realization. Nobody can be sure that his/he patent will survive
> all 20 years unchallenged. As for the software patents - it is lunacy. If
> there are no definition for "software"- what is being patented? "Software"
> is now protected by  copyright and as a trade secret - when it is placed in
> escrow storage. Why it need to be patented on top of it?

Copyright doesn't prevent people from independently writing programs which
do the same thing.

That is why companies want software patents, once they are available.
Also, David Kappos from IBM's patent department pointed out at a London
hearing in 2000, people would want guns once the mayors sells them.
The question is only, whether we should make software patents / guns
available and if yes under what conditions.
There are many good reasons to allow independent rewriting.

> (b) the public disclosure function of patents is useful (and people may be
> > able to engineer around a patent), especially bearing in mind that trade
> > secrecy runs indefinitely.
>
> > Nothing is indefinite. Mere existence of the trade-secret, now -how and so
> on is an invitation and clue for finding out what it is. And knowledge that
> this can be done is the most powerful stimuli. It is only matter of money,
> accounting -not the secrecy.
>   How long it is gonna take to build antygravitational platform for
> organization which has means for it -if they get information that it was
> already build by someone? Some 30 years ago I have seen the pictures of
> levitating girostabilized platform build in Australia. It was printed in
> popular techy magazine and soon all that  UFO staff went on the high gear...
> The USA patent law as a part of the system is the best I knew of so far. It
> is understandable that Europeans and Japanese trying to compromise it - they
> cannot compete, so they do it other way around... If politicians  really
> care they  would abolish national patent laws and except USA Patent law as
> one and only regulatory mechanism for IP around the globe. It is like
> democracy  - it is bad, bat it is best we have ( the gay who said it was
> European and SOB, but he was right).

I don't understand your reasoning here.
You point out that trade secrets don't last indefinitely.
Thus you weakened one argument that is regularly brought forward in favor
of the patent system.
Moreover you point out that when something has been successfully done,
many people will reengineer the blackbox and with a certain timelag.
At least in most cases here again no need for patents:  they just prevent
reengineering for 20 years and give an unnecessary extra benefit to the
first publisher.  If there is still any need for patents, then perhaps due
to the fact that the invention required a lot of investment and can be
imitated quickly.  But that does not seem to be the case for most of
today's patents.  So in a majority of cases the system may be doing harm.
Machlup's arguments of 1958 are valid today more than ever.

What you say about the US patent system versus the others I understand
even less.  They are approximately all the same, and the US has some minor
additional features which are hardly perceived as advantages anywhere.
By stating that "Europeans and Japanese are trying to compromise it
because they cannot compete" you seem to tell us that you view the US
patent system as an instrument of trade protectionism.  Which in fact is a
common view espoused by US pro-patent activists in the early 80s, when
people were looking for a means to keep Japan at bay.  Prof. Straus of MPI
(Munich) stresses the same aspect of the patent system when he argues for
unlimited patentability.

Certainly, by allowing function claims (of the type: "means and system to
control one computer by another" or "walking on the moon") you can
effectively prevent people from reengineering.  Nobody in a newly emerging
industrial country (such as China, where currently much of the world's
electronics production capability in fact is) can engineer around patents
that flatly claim a whole functionality.  But there's a saying in German
like "He who digs a whole for another will fall in himself".  I wouldn't
be surprised if this is happening.  During recent years, the IT industry
of the US has become relatively weaker compared to JP and EU, and
therefore it seems all the more urgent for the US to quickly export the
kind of poison that they have been drinking all along in the (largely
justified) hope that competitor states around the globe would also start
drinking it.

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