Re: [Patents] Software Patents: The Patent Trap

[Bouthier Christophe <Christophe.Bouthier@loria.fr>]

On Fri, Feb 22, 2002 at 03:16:03PM -0500, Gregory Aharonian wrote:
> Chris,
>       They are interesting questions.  I shall give them some thought.

Thanks. I would really like to have your point of view on thoses two
points.


> But what you have to keep in mind is that they are mostly considerations
> that are not part of intellectual property laws.  That is, IP laws take
> about "process", not how much the process costs to make, distribute,
> improve, etc.  

Well, if you see the text from the European Commission,
http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf
the first page is about how much the process costs to make and to
improve :
" Given the maturity that today's software industry has achieved, many
  improvements of software are increasingly difficult and expensive to 
  achieve while, at the same time, they can easily be copied."

Whether this sentence is true or false is not the point here. The point
is that the introductionnary text of the proposition is really about
the costs of the process. And, as I understand it, this introductionnary
text seems to be here as a proof that software patents are needed.

But maybe I misunderstood this text. Feel freee to tell me if it is so.


> That software engineering differs from other engineering
> fields in these matters, is both interesting and important business
> considerations.  But IP laws, patents and copyrights, mostly ignore such
> economic considerations.

Well, as I said before, I think that the official text is a proof of
the contrary.
But fot the sake of the discussion, let's try another argument. 
Let us think that, as you say, such economic considerations, about
the costs of producing and distributing products, is outside of
the considerations of IP laws.

Still, I think that IP laws are concerned about the balance between the
rights and powers given to IP possessors (inventors, creators, ...) and
those of plain citizen. Am I wrong on this point ?

Then, the ability for a man to distribute what he has build is a 
right that should be balanced against the right for an inventor to
license its invention. And such a right is the concern of IP laws, 
as I understand it. Am I right ?

More specifically, as I have understood the laws, the goal of a patent
is to rewards the inventor for its invention. And the way to rewards
him is to make sure that anybody distributing his invention has to 
pay him. Am I right ?

This sounds logical because if you build any engineering product (forget
software for the moment), you have to pay for the physical material that
you use (be it electronic components, chemical products, even silicon
waffer if you are designing microships). Then, you have to make
the people pay if they want to use the product. 

And nobody complains about his right to distribute a product for free, 
because in fact this right doesn't really exists, as a product costs
something to be made. So distributing the product costs something to 
the manufacturer. And nobody want to pay for nothing.

So, the balance could be made between the right to distribute and the 
right to be rewarded for an invention.

But with sofware, you can build and distribute something for free,
without any loss for you. So now, there is another right, for the plain
citizen, that should be balanced against the right of the inventor
to be rewarded.

And I think that the balance of those rights is exactly what IP laws are
about. I think that it's the reason for the 20 years duration of the
patent (for patent laws), and for the 70 years duration of copyrights
and for the right to do a unique safeguard copy for software in copyright 
laws. Am I wrong on this point ?

And so, if the IP laws are concerned about the balance of rights, and
the software introduce a new right (for plain citizen) that should be 
balanced with inventor's right, a right that was not present for
any other engineering fields, then I think that this is
a difference between software field and other enfineering field.
And that this is a difference that IP laws are concerned with.

Do you agree with me ? 
Were is my reasonning wrong ?


Speaking of IP laws, and so of copyright, another point came to my mind :
if we look at the copyright laws, in europe, 
http://europa.eu.int/eur-lex/en/lif/dat/1991/en_391L0250.html
we can see that we have special copyright laws for software.
For what I understand about this law, it is made because of another
aspect of software : the fact that the expression is not dissocied from
the functionnality. And so the copyright, protecting the expression
(coming back on this after, don't flame me right now :-) ), should not
forbid the functionnality, especially the interoperability of systems.

Ok, on the "expression vs functionnality" part, I know that the
definition of a line separating the two is not clearly made, as you
signaled in an old post on this mailing list. Yet, I think that we all
agree that source code is protected by copyright against "pure" copy 
(I would almost say "copy as such", but somwehow I don't feel secure
with the meaning of "as such", guess why... :-) ). If you don't agree on
this point, please feel free to tell me so.

So, couldn't we say that sofware is different from others engineering
fields, concerning IP laws, as it is already reflected in copyright laws ?
And so, as we have specials copyright laws for software, we should have
specials patent laws for software ?

Do you think that this point is valid ?


Finally, even if IP laws are not about economic concerns of production
and distribution, nor about balancing rights, I'm almost sure that
patent laws are concerned with innovations.
So, the question about genetic programming stay current. If 
genetic programming is to be forbidden because it can infrige software
patents, I think that this is in contradiction with the patent law :
how could you foster innovation by forbidding a complete field of
programmation (and of reseach) ?
But if genetic programming is allowed, then how to conciliate it with patent
laws, concerning the problems of patents infrigments that could rise, 
as explained in the last mail ?


I hope that you will find my reflexions not too stupid and maybe
of some interest. And I'm waiting for your own reflexions on those 
problems :-)

C.
-- 
By the grace of God Almighty
And the pressures of the marketplace
The human race has civilized itself.
It's a miracle.                      -Roger Waters-Amused to death-