[Patents] RE: could you amend the statistics if they are wrong

[halber@timsi.com.pl (Jozef Halbersztadt)]

"Stewart Davidson" <stewdav@attglobal.net> wrote:

> 
> I take it from your response that our report is now available in Poland. We
> are pleased !
 
> However, I am a little concerned that the numbers you have stated might be
> misleading.
> 
>  The consultation was not an opinion survey
> in the classic Gallup sense. 

In my opinion your report is a sole work on software patents paid by
the DGIM budget money that is worth of reading. But the first question
is why the consultation was launched. In May I wrote in a big Polish
computer magazine (more as 100.000 copies) that with this move the
DGIM played in autumn 2000 for time and was trying to save the patent
lobby against knock-out in Munich. I wrote too that if the patent
lobbies will continue to push their narrow interests in result they
de-legitimise the whole patent system. 

Everybody knows that less as 1% of population carries about patents.
Your probably know a British study with a finding that very low
percentage of SMEs is interested in patents. And the second finding
that a big fraction of SMEs accustomed with applying for patents is
preferring a world without patents.

In such circumstances it is difficult to conduct a representative
survey. But if the DGIM had been interested it would have tried. Now
we can only say that the numbers I have stated are probably a good
characteristic of those who are interested in the issue.

> > For Software Patents 114 responses from 1263 - 9.0%
> > Against Software Patent - 91.0%

> > Against in groups:

> > Individuals  - 97.8%
> > SMEs   - 92.4%
> > Large Enterprises  - 73%
> > Associations  - 33%

> > User   - 99.2%
> > Student   - 99.1%
> > Academic  - 96.8%
> > Software Developer  - 93.8%
> > IP Professional  - 23%
> > Governmental  - 15%

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

> 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.
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.

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."

Jozef Halbersztadt