[Patents] Greg's inflammatory speeches before the EPO congregation

[phm@a2e.de (PILCH Hartmut)]

Greg is utilising some standard beginner misconceptions of people who
don't know the software business, such as:

(1) the debate is about patents vs opensource software
(2) opensource software is not important because not a lot of money is
    made with it
(3) copyright is a weak instrument for protecting investments in
    proprietary software

I think he knows better, but the prospect that patentability could be
restrictend in Europe and then later in the United States seems to be
driving him nuts.  Otherwise I can't explain the following statements:

>      They quote at one point a German company (who apparently was not
> interviewed for the German study):
>         "Where is our business model if everyone else can copy it?"
> =09asked Holger Dyroff, former CEO and now director of sales
> =09for Linux software seller SuSE.  "The question is where we ca
> =09can make money now.  Nobody cared about profitability two
> =09years ago.

> =CBxactly.  Why should some small company develop some open sore
> software, only to see the consulting and support contract go to big
> service companies who can better serve corporate needs to make use
> of this software acquired for free.

SuSE is continuing to develop free software, while at the same time they
have been developping some proprietary programs all along.  SuSE has been
making a lot of money, but they expanded too quickly and mindlessly two
years ago.  They are still better off than lots of big companies.  On the
whole, the free software world doesn't seem to be more affected by the
current IT crash than the average.  Some say less.  But that is beside the
subject discussed in the Fraunhofer/MPI study anyway.

As in other fields, there are markets that big companies are likely to
occupy.  IBM could leverage its patent portfolio to reinforce this
tendency.  Who except for IBM could provide a patent insurance to
frightened customers?

Small companies (ideally 20-200 people) again typically are enabled by
copyright and related rights to develop a fairly steady-growing income,
independent of investors, business angels etc, all of which tend to be
dangerous to software companies because they want to have a say over
things which they don't understand.  This European SME ecosystem is
particularly endangered by mechanisms such as software patents. The
current crash is not a crisis of opensource software but a crisis of the
New Market and its model of venture-capital-driven software business.

> Now that the false economics of open sore is rearing its head, such
> companies will revert to traditional IP techniques: licenses,
> copyrights and patents.  And given the general impotence of software
> copyright for source code, I suspect such compnies will be relying
> more on ...... software patents.

If software is patentable, they may very well be pushed onto that path.
But the study (and general experience) shows that

(1) they, even more than other software companies, don't want swpat
    (microeconomy)
(2) swpat are not likely to lead to more productivity in the software
    field as a whole (macroeconomy)

> So I question on what basis and research did the German study
> base its conclusions that software patenting in EUrope should be
> discouraged or not broadened, in favor of open source software??

on the basis of a questionnaire answered by a few 100 software companies
and some micro- and macro-economic reasoning.

> Especially, in light of open source companies, interested in jobs
> and profits (which I assume is also of interest to the EC), are
> now starting to revert their IP practices to traditional patents
> and copyrights (with licenses).

The respondents didn't show a tendency of being unsatisfied with
copyright.  Especially in Europe there can't be any talk of a "return to
patents".

> 52.2.C makes no scientific, logical and in light of the above,
> economics sense.  It must be dropped.  Then again, is the EC
> wants to encourage SMEs in EUrope to develop software that bigger
> US service comapnies can make most of the profits out of, I suppose as
> an American I should be applauding this fight against software
> patents.

It is typical of Greg's way of thinking that he equates his temporary
limited view of a situation with "science", "logics" etc and then
denigrates more complex systems of legal reasoning as "unscientific"
because they are beyond his capability (or willingness) of understanding.
This is an attitude inherited from traditional religious thinking.
"Science" in there just fulfills the function of a fetish which everybody
tries to claim for himself, because it is beyond the reach of critical
rationality.

As far as the understanding of art 52.2c EPC is concerned, I recommend the
reading of

=09http://swpat.ffii.org/stidi/epc52/

and especially a german text whose english translation is under way

=09Prof.Dr.iur K.F. Lenz: On the interpretation of art 52.2
=09http://swpat.ffii.org/stidi/epc52/exeg/

Further interesting texts are described and linked to in

=09http://swpat.ffii.org/stidi/korcu/

Art 52.2 reads to me like one of the clearest and most well-crafted parts
of the EPC.  It is only the EPO's interpretation of it which doesn't make
any sense.

--=20
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation=09    http://swpat.ffii.org/
95000 signatures against software patents       http://www.noepatents.org/