From phm@a2e.de  Sun Aug 12 18:09:37 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sun, 12 Aug 2001 19:09:37 +0200 (CEST)
Subject: [Patents] RE: could you amend the statistics if they are wrong
In-Reply-To: <3B764616.5BDC8168@timsi.com.pl>
Message-ID: <Pine.LNX.4.33.0108121817230.6839-100000@mulix.oas.a2e.de>

On Sun, 12 Aug 2001, Jozef Halbersztadt wrote:

> Associations represent IP professionals, bureaucracy and a quarter of
> large enterprises?

Unfortunately, in the present case it is very hard to tell to what extent
the associations represented anybody.  The pro swpat submissions mostly
follow the same pattern: a patent lawyer applauding the CEC consultation
paper and adorning each of the points in the paper with some conventional
patent lawyer wisdom.  While PbT consultants (and hiding behind it DGIM)
are applying all the methods of critical philology and sociology to the
anti swpat respondents who used the Eurolinux gateway, they have failed to
analyse the gateways through which the pro swpat papers were sollicited.
These imho consisted in well established rounds of patent professionals,
such as those at the London conference of 2000-10-20, where the
consultation was announced, at the Munich conference of 2000-11-20, where
Mr. Mueller issued another call to the assembled pro swpat lobbyists, and
several other conferences.  The consultation paper itself was a patent
movement mobilisation paper.  Any normal IT association with little
experience in the patent field (as is the standard case today) could be
expected to entrust its patent lawyer to write a response to this paper,
since the paper was constructed in a way that made it impossible for
anyone except patent lawyers to respond.  And in most large IT
associations patent lawyers have sufficiently good connections through the
large companies whose patent departments chairman usually chair the
concerned workgroup, if such a workgroup exists at all.  Moreover, since
the notion of patent is well established and rarely questioned in public,
applauding the consultation paper is a default (fallback) position of
those who want to avoid public exposure.  As the PbT paper shows, anti
swpat people are today officially treated as holders of "radical" views
while pro swpat positions are seen as "moderate" and "realistic".  Thus it
was certainly easy for the patent lawyers who received the DGIM
role call to find an IT association that would allow them to write
a paper in their name, even if just for the sake of "showing presence".
Thus, the DGIM correctly speaks about a "consultation exercise".  One
could also call it a "patent movement mobilisation exercise".  Under these
conditions, any pro swpat paper could arguably be counted as a mere
default value, i.e. a non-choice show of presence and therefore void.
I think that only those pro-swpat papers need to be considered that show
some new non-default argumentation.  Such papers do exist.  One was
written by Nick de Longo, author of the cesiumsound.com software.

By weighting in this way, we of course get a pro swpat vote of <1%. On the
other hand, what counts is neither the number of votes nor the prestige of
the hats which anonymous writers are wearing, but the quality of
arguments.

At FFII and Eurolinux we have been trying to evaluate the submissions and
we have written short summaries of meanwhile >100 of them.  See

	http://swpat.ffii.org/vreji/papri/eukonsult00/

This is ongoing work and everybody is welcome to contribute.  We would
also appreciate it, if DGIM and all those involved in journalistic work
about the consultation put links to this page under their stories.  Such a
link would also be appropriate on

	http://www.indprop.com/01.php3

I think it is not good style to continue waging a battle by waving with
big names or numbers and withholding informations about the real debates.

> > As a consequence, PbT Consultants do
> > not consider it reasonable to simply arithmetically aggregate the results.
> > Rather, we feel it preferable to attempt to characterise the two viewpoints
> > and leave it to the reader (and the politicians) to value the "weight" of
> > the two points of view.
>
> Problem is that your report is rich in numbers. But the numbers are
> tailored in a way that they are not devastating for the pro-patent
> case. A name of such operation is manipulation. As your great Prime
> Minister said: there are lies . . .  .and statistics.
>
> Your characteristic of two viewpoints is not deep. If you were trying
> to compare merits of two positions the weakness of the pro-patent case
> would have been uncovered. The only argument on their side is that the
> software patents are legal. Firstly, it is doubtful, even in the US.

In fact the PbT report does not mention any of those submissions which
cast legal doubts on software patents, such as e.g. the brilliant analysis
of Guenther Schoelch, examiner at the German Patent Office.  See our
consultation page for such information.  PbT/DGIM are still very careful
to make it appear as if their position represented a kind of established
default opinion while everyone else's view is that of a more or less
"radical" or "restrictive"-minded outsider.  Schoelch convincingly argues
that those who plead for software patentability are breaking all the
limits on patentability and thereby promoting a radical rupture of
civilisation and heading for a dangerous brave new world.  Btw history
repeats itself:  before the Chernobyl disaster, those who advocated
building uncontrollable sources of danger into our planet were considered
"conservatives", while those who, partially due to a conservative reflex,
shyed away from such daring visions, were labelled as "radicals".

> Only Supreme Court can tell whether software patents serve the
> progress. Also in Europe the EPO practice cannot change French, German
> and any member country constitution. But even if they are legal there
> is no a necessity that we should have them. Up to now the true aim
> behind the DGIM efforts was not harmonisation of the European
> situation but harmonisation with the US. Europe has enough
> intellectual and material resources to avoid wrong American route as
> she is proceeding in an ecology area.

> What should be done? A deep study of the problem was completed in the
> US seven years ago. Its name is A Manifesto Concerning the Legal
> Protection of Computer Programs. All educated IP professionals know
> this magnificent work and in the past majority of them were for its
> implementation. You overlook that the EuroLinux Letter to the European
> Commission of February 2001 is mentioned a follow-on paper to the
> Manifesto: "In case special anti-cloning protection is really demanded
> by the software industry, as the DGIM claims in its invitation paper,
> Mark Paley's Model Software Patent Act could provide a useful source
> of inspiration". There will be no problem with acceptance of sui
> generis right system by both sides of the great divide. It is the
> highest time for the DGIM to commission a study proposing what kind of
> additional measure should be taken to allow sui generis right to work:
> (1) How to seal up patents field, (2) How convert issued patent rights
> to sui generis rights (3) What kind of special provisions are needed
> for Open Source software. If the DGIM staff remains blind this work
> will be done without them.

Currently the problem here is that we cannot discern any real demand for
anything beyond copyright and competition law.  Although my impression is
that such a demand does exist and is to some extent legitimate, none of
the IT associations that took part in this "consultation exercise" was
able to formulate any examples of market failures of the copyright based
regime which would need to be addressed.  This is another reason for
considering their submissions to be without any value.  In fact, these
submissions are an excellent pile of reference material for an "Patent
Lawyer Junk Talk FAQ" but hardly anything more.  Instead of describing
problems of the software companies they pretend to represent, they just
reiterate the usual naive patent movement myths about the history of art
52 EPC and about art 27 TRIPS.

> Ideologically motivated guy's from the DGIM should not be sad. Open
> Source world can be reconciled with a free market. Even more, Open
> Source itself is a free market. As Eric Raymond wrote in The Cathedral
> and the Bazaar, section 10: "The Linux world behaves in many respects
> like a free market or an ecology, a collection of selfish agents
> attempting to maximize utility which in the process produces a
> self-correcting spontaneous order more elaborate and efficient than
> any amount of central planning could have achieved."

Also, among the submissions from FEI, EICTA, BSA and others we find no
analysis of the software market, its successes and failures nor a vision
of what it should be like.  In writing our "Patent Lawyer Junk Talk FAQ",
we can quote EICTA, BSA and others and erect for them a monument of
shameful failure.  It is quite frightening to see how easily ignorance can
prevail and assert itself in the corporatist world of today's allegedly
highly developped society.  Software associations can easily be mobilised
to support a predatory assault of the patent movement on the software
community by more or less laughable, braindead patterns of argumentation.

Still, compared to such fields as nuclear energy, the risks at
stake are still fairly overseeable here.  This alone may suffice to turn
people away from bold visions of all kind.  We have not yet reached the
stage in which we can be confident to be able to master even fairly simple
problems with a minimal level of prudence and rationality.  That is
perhaps also why a simple system like copyright is so successful.

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







