From phm@a2e.de  Thu Aug 16 08:36:32 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Thu, 16 Aug 2001 09:36:32 +0200 (CEST)
Subject: [Patents] RE: protection needs beyond copyright? (fwd)
Message-ID: <Pine.LNX.4.31.0108160935460.4689-100000@querty.oas.a2e.de>

---------- Forwarded message ----------
From: PILCH Hartmut <phm@a2e.de>
Subject: RE: protection needs beyond copyright?
To: intprop-l@topica.com

On Wed, 15 Aug 2001, Paul Edward Geller wrote:

> > > 2. Software is utilitarian it has no interaction with the human brain
> > > as its aim.
> >
> > This half-truth also applies to maps, scientific writings, instruction
> > manuals, musical scores and the like.  Their aim is not to create some
> > sensation in the human mind by a verbal expression (as in poetry), but to
> > convey a concept that, when put to practise in a second step, must
> > function correctly.
> 	Not quite right.  Copyright does not protect the musical score as
> such, but the musical work it conveys.

I would assume that it covers both.  I will infringe both if I make
unauthorised photocopies of a particular score and if I republish that
score in another notation or write a similar piece of music (plagiate).

> As to scientific writings, etc.,
> the issue is more subtle.  Copyright does not protect the content of such
> writings, but actual text, style, etc., that help to communicate the
> content to the human mind.

Again more than that: also the arrangement, tissue (Gewebe) etc, in short
any element that can be fairly easily proven to have been copycatted,
because it carries marks of individual creation.

This of course does not apply to basic principles, functionalities or
realities which are necessarily the same for every author who writes
something independent.

> That said, we plunge into the issue: what does
> copyright protect in software?  Is, for example, a GUI interface an
> audiovisual or a literary work, as TRIPs would deem any program to be?
> 	[...]

Here the relation is similar to that of the musical score:  both the
notation and the message received by the ear (in this case eye) are
copyrighted.

With GUI interfaces, we however encounter an area where people will likely
to be come up with the same result for non-reproachable reasons:

- there are ergonomic principles which are the same for everybody
- even if one GUI of a leading vendor contains some individual elements,
  it may be necessary for the others to use them for interoperability
  purposes or because of the power of habit.  Here the imitator is not
  imitating something because of laziness -- he might well have preferred
  to create his own GUI which is not difficult -- but because of a
  market-dictated necessity of complying with standards.  Thus a certain
  GUI, even if it once was the individual expression of a programer, is
  later no longer so but mutates into a de facto standard.

> > Moreover, all these works are also directed to the human mind, namely to
> > and improving it.  Particularly in software, this function is very
> > important, and trying to negate it today would mean a fallback into a dark
> > age of unenlightend IBMPC/M$OS hype.  Even during that dark age, software
> > was a communicative process of an expert community [...]
> 	Here we come to what U.S. copyright doctrine calls "merger" (only
> roughly analogous to the German doctrine of _Freie benutzung_).  If there
> is only one way, or only a few ways, to state the content of a work (e.g.,
> a program), then copying that way or those ways will not trigger liability
> for infringement.  Here lies the weakness of copyright for protecting
> programs against alleged adaptations.

This is not a weakness but a strength.  It shows that copyright has
flexible concepts which can adapt to what is necessary for maintaining a
fair market competition.

There may be borderline cases where a lot of tedious (or
fascianting) arguing ensues from these flexible concepts.  But that is the
case with any reasonable legal concept.  It proves that the concept is
adapted to life.

> But, to my patent-dilettante mind,
> the patent doctrine of equivalents raises analogous issues.

Right.  But the patent system is not adapted to the rules of fairness in
software creation.  Some adaptions, like interoperability exceptions etc
would be thinkable, but on the whole I would assume the patent system to
be hard to adapt to software, because from the outset it has been brought
to us as an aggressive landgrab attempt by a powerful group of outsiders
who don't give a damn for the problems of the computing community.

> 	I would agree with Axel that claims have to be read against the
> background of the description of the invention at issue, which effectively
> forms the subject of the proposition:

Actually that is one of the points I was making against Axel tendency to
stick formalistically to claim language and allow fraudulently written
claims to restrict the analysing capability/responsibility of the patent
examiner.

> Thus and such device has thus and such utility (industrial
> application) -- while abstracting away everything obvious
> (non-inventive) that a person skilled in the art could have developed
> to meet the utility in question.  Of course, this "everything"
> includes all logic/mathematics that form the basis of all thinking --
> thus including the logic/mathematics of the skilled person's thinking.

> 	Hartmut seems to be saying that that "everything" includes all
> algorithms.

That would be one way to put my point.

copyright
  individual creations
    a creative way to weave algorithms together without the algorithms
    themselves

patents
  technical inventions
    an inventive way to materialise algorithms without the
    algorithms themselves

There has always been a pressure to extend the patent system to the
algorithms and thereby fulfill desires which copyright explicitely denied
for good reasons.  Patent attorneys naturally played the role of
representing this kind of pressure.  This became both a business and an
ideology, needed to enhance self-esteem and sound convnincing in court.
Only a very strong conscience could be stronger than such an ideology in
an environment of PA peers mutually reinforcing their ideology.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
85000 signatures against software patents         http://www.noepatents.org/

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