[Patents] Odp: swpat with free niche ?

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

> > Battle over logic patents is far from over. But the failure to
> > legitimize them in 2000, the result of consultation exercise of
the
> > DGIM make Europe different place to live. One can now observe
efforts
> > to keep status quo, and create for open software a special niche
> > where attorneys are not intervening.
>
> This seems too optimistic.  So far I have not seen any serious
proposals
> for keeping open/free software free from patents.  If you look
closer at
> the proposals, you find that they are merely proposing that
publication or
> distribution of source code should not be considered an
infringement.
> Nobody has a clear proposal on the free use of such software.  This
is
> indeed difficult, because you cannot allow people to use a chemical
> process just because the software for controlling it is free.  If
you want
> to solve this problem, you can no longer avoid the fundamental issue
of
> "technical invention" (logical functionality vs physical causality).
>
> Of course some dirty compromises solutions could also be thinkable,
but I
> am afraid both sides have their reasons for shying away from
proposing
> anything of the sort.  There is currently no context in which it
could be
> proposed, because the established powers don't want a discussion,
and it
> makes no sense to discuss among us something we don't believe in.
>
> > The task before us is reject this kind of proposals and left no
doubts
> > that we can agree only on a law that treats closed/proprietary and
> > open/free software at equal footing.
>
> I would not reject them outright but rather use the opportunity for
> getting the discussion moving, such as done recently with JP Smets
in
>
>   Software Patentability with Compensatory Regulation: a Cost
Analysis
>   http://swpat.ffii.org/stidi/pleji/
>
> This article mentions a lot of possible compromise packages, but we
can of
> course not really propose or endorse any of them.  That is something
for
> politicians to think of.  When a normal citizen mistakes himself for
a
> politician or diplomat, he will commit the kind of errors that
Lutterbeck
> et al committed in
>
> http://swpat.ffii.org/vreji/papri/bmwi-luhoge00/
> http://swpat.ffii.org/vreji/papri/bmwi-luhoge00/indexen.html
>
> They were charged with clarifying the issues and they played
politics
> instead, producing a set of unworkable compromises based on
half-truths
> bent to accomodate the prejudices of the perceived two lobbies,
quite an
> unpalpable mixture that could be pardonable and honorable, if it
came from
> real politicians, whose job it is to create such beasts.
>

The Commission in 8 months was not able to produce even a
semi-official position. It is 6 months since this leading guy from the
DIGM had a speech in Paris. The sole break of the silence is the
analysis of the consultations. I expect continuation of the treatment
from the analysis. As you observe, no dialogue. Still an exercise to
create a place where free software can exist - one can expect this
type of presentation for wider public. This is a general phenomena.
This type of eclectic solution is probably the main feature of the
recent CDU Internet paper.

I do not see much difference between Lutterbeck at al approach and the
French Academy of Technology approach. The status of two parties I
also find similar. The main difference is that Prof. Lutterback was
asked to propose a solution for a problem, the Academy has done it
from own initiative, I suspect. If you expect compromise proposals
from politicians, it can happen that they never will arrive. In fact
it is a delicate question. Politicians like to present themselves as
those who have an initiative and are not "addicted" by narrow
interest. But this is rather true in relation to problems understood
by millions. Those millions do not expect political leaders to be
knowledgeable about such specific fields like "intellectual property".
As concerns problems like patenting at the first stage politicians are
surprised about their existence, at the second stage they are looking
for survival in any realizable proposal that keeps main body of what
was till now. You are right that we cannot avoid problem logical vs.
physical. But you cannot expect that politicians easy recognize that
courts during 15 years were wrong. This is a task for judges
themselves. And they are even less inclined to such moves as
politicians. Any realistic solution should offer a path outside
dangerous areas. Lutterbeck was not a normal citizen but an expert
employed by a minister. As I understand his assignment included
elaboration of proposals. If I were minister my problem with his study
would be the lack of proposals. I am finding there only one instead of
set of options. But it was the first, in some respect a pioneering
study.

I like very much the paper you wrote with JP Smets (there is any
author on the page). Especially sections 1-3, 5-7. In my opinion
section 5 should be extended. You should asses the costs of the
alternative approaches as well. Sui generis right approach I estimate
for 30,000,000 Euro a year.

In my opinion you overestimate costs of the French Academy proposal
(section 4). Your cost of a man is 200,000 Euro a year, in the EPO it
is 150,000. Total budget of the EPO is 700,000,000. It is your lower
estimate for the whole exercise. Your budget of patent incentives for
small publisher is enormous. And anyone understands that it is
impossible to get acceptance of software developers for financing
their patents without covering their real priorities. This part of
your exercise should have another construction.

Improved examination. I do think I am qualified enough to compare
practicalities of examination not only in Polish and European but also
a few other patent offices. In any office in the world the examining
process is conducted in better condition as the EPO. In the EPO
theoretically 4 examiners are working on one application, in practice
2. Since decade is a strong pressure to reduce 4 to 3 and 2 to 1. The
world standard is 1 examiner. In my opinion the EPO is the best in the
world. But not twice as good as the US PTO although it has twice as
many financial and material resources. The answer why one finds in
your section 6. Software is difficult to analyze not only from patent
point of view. Similar problems are with any similar crude mechanism
applied to software. For example, applications for grants. It is much
easier to write an application for material object research as for a
research in field of software. Therefore software research is
underrepresented as concern scientific grants.

Jozef Halbersztadt