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

[halber@idea.net.pl (JHalbersztadt)]

Jozef Halbersztadt wrote:
> >
> > "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
> > kind of additional measure should be taken to allow sui generis
> > a study proposing what right to work: (1) How to seal up
> > patents field, (2) How to 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.
>
Hartmut Pilch wrote:

> 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.

If they do not deliver I will try. To me the failure is clear from the
famous Lotus cases concerning spreadsheets. They definited what is
protected in software by copyright. There is no need to be an
psychologist to see reasons of Kapor's motivation. The last court case
is even more stanning than election of the current US President. The
Supreme Court was deadlocked in 1996 in 4-4 nondecision. In Europe we
do not care about software copyright because European software
"propietary" industry is weak and 90% "propietary" software products
on European markets is foreign made. In result there are not many
software cases in European courts, the producers can regulate their
rows at home.

It is because of failure in copyright "propietary" software producers
were prompt in trying new tactics in an effort to protect their
products by patents. Thus, it is important to draft a concrete
legislative proposal redefining software's role within the
intellectual property statutory scheme.

The supporters of status quo strongly believe in linear world. But the
world is rather cyclic. They do not understand that their priviledge
position is not given to them forever. That after an expansion of
monopolies regulated by patents time is coming for a reversal, as it
was in the second half of the 19th century.

>From someone who is repeating "matra" you can only expect an inertial
accommodation. Therefore it is need to deliver arguments in place of
them. Copyright is not enough because computer programs differ too
much from "White Christmas" or "Ring of Nibelungen". Although the
programming is an art, the programs are not wanted because of their
artistic values, but because of  their utility.

There are more advanced arguments as well. Crucial are relations with
rest of the world. Europeans should have possibility to apply for the
foreign software patents, especially American. That is why Europe
should have a special software utility model regime. As someone
important recently said in German Parliament: "Behind sui generis
right proposal is charm and logic". It was noticed in the DGIM, I
suspect.

Main principles of the needed action:
1. Exclusion of computer programs from patent law.
2. Special sui generis regulation for algorithms:
(1) protection of algorithms as they are defined in computer science;
(2) simple applications should disclose an innovation in a manner
sufficiently clear and complete for innovation to be carried out by
person skilled in art; filing a complete source code or object code
listing;
(3) short term of protection - e.g. 4 years;
(4) the application not examined until challenge has been made;
(5) compulsory licensing and software royalties, clearinghouses for
licensing, similar to those currently in force for music.
3. Special provisions for OS/FS:
(1) no need to apply with every algorithm; it is enough to inform
about the site where source code is available;
(2) a separate clearinghouse.
4. Procedure to extract algorithms from the patented invention and to
remunerate the rightholder for the compulsory license.
5. A person who has filled in or for any State party to the Paris
Convention an application for patent or for the registration of the
utility model shall enjoy a right of filling application for the sui
generis right under the proposal. And any person who has dully filed
an application for sui generis right also shall enjoy a right of
filling in the other countries of the Paris Convention. It is
permissible for Europeans to file a patent application in the US by
virtue of this right.
6. To further OS/FS the EU is establishing an organizational body and
procedures that combine features of ICANN and European Social Fund.
The Corporation is composed from two branches: (1) an Institute a
structure responsible for debates and decisions and (2) a Fund that is
performing a role of clearinghouse licensing society for OS/FS
developers and financial establishment able to put linked to OS/FS
business models at equal footing with traditional business models.

The proposal is conceived to meet 4 recommendations of French Study
"Stimulating competition and innovation in the information society":
(1) the creation of a sui generis right for intangible inventions
pursuant to the objectives of stimulating innovation and sharing
knowledge; (2) the retention, when the European Patent Convention is
revised, of the exclusion of computer programs from patent protection,
in order to avoid an unlimited extension of the patenting system to
intellectual methods; (3) that the present patenting system in Europe
be clarified by asking the EPO to refrain from granting patents for
intangible inventions which are clearly excluded (e.g. the
distribution of recipes in supermarkets to encourage consumption); (4)
the current holders of patents on intangible inventions be advised to
convert these patents into sui generis rights once they have been
created. The proposal includes also a feature that was not among
recommendations of the Study - automatic uniform and
non-discriminatory license. This feature was discussed in the Study
and was a part of an alternative scenario - using limited-privilege
patenting.

Jozef Halbersztadt