Re: Back to the basics of patents... (Was: Re: [Patents] OT? : Patent for games...)

[PILCH Hartmut <phm@a2e.de>]

>   How many of us can afford this service?  Is time spent trying to ensure
> that only the valid 40% remain in the system worth the huge cost to the
> industry to constantly be expending resources 'busting' the 60%?  How many
> benefit from that 40% compared to the lost productivity caused by the
> resources spent on the 60%?

The valid 40% are also a cause of lost productivity.

If a patent is valid according to some obscure formal game designed by
patent lawyers, why should that mean that it promotes progress?

>   Beyond the "just say no" answer, we have many proposals put forward to
> take the sting out of software patents.

Mostly based on the erroneous assumption that there are interests between
which a compromise can be found.  Unfortunately the patent lobby has not
formulated any interests.  Its position so far is only "we are in power
and we want to make sure we can go on playing the game in which we are
proficient and to which we owe our power".  You noted yourself that they
are not putting forward any macro-economic arguments.  It is to be added
that they are not even putting forward micro-economic argument.  Their
position is not driven by economic interests at all.  At least not by
interests of those to whom patents supposedly offer "protection".

>   Some of these include ensuring that the entire collection of Free/Libre
> and Open Source Software automatically become part of all patent offices
> searches for prior art.  Will this solve the problem?

Why should that solve any problem?

You still seem to believe that everything would be fine if only it could
be assured that patents match some patent-lawyer-designed formalistic
criteria such as "novelty".

Valid patents are more harmful than invalid ones.

It is better to have a situation of general doubt about the validity of
patents than one where patents can be readily asserted.

See

        http://swpat.ffii.org/analysis/shield/

> While patents are intended to divulge the invention so that someone
> "skilled in the art" can follow the procedure, this appears to be rare
> with software.

I don't see that as a big problem.
If the description is not well written, the patentee will suffer in case
of litigation.  There are enough incentives for writing a good
description, and claims are not there for divulging information.

>   My own favorite is to create a "Fair Use" doctrine in patent law that
> would exclude Free/Libre and Open Source Software from patent infringement
> claims, leaving the software patent battle to be only between the
> royalty-based businesses.

Is there any evidence that swpat promote progress in the royalty-based
sector ?

Maybe a nice "compromise", but again designed in vain, because the
pro-patent side has not formulated any interests on which to compromise.
Offering such "compromises" just weakens your legitimate insistence that
patents should not exist where they do not promote progress.

> unfortunately an unlikely option.  The "just say no" answer is the next
> best thing.

The "just say no" answer is clear and reasonable.

> By the way:  I gave the old "software is just mathematics, and
> mathematical methods cannot be patented" argument a spin around the block
> (Meaning, I thought about it for a while ;-).
>
>   I (unfortunately) had to agree with those who don't buy this argument.
> I thought about how Unified Modeling Language (UML) is being used to model
> many real-life processes, many of which are patentable, and didn't see how
> UML could be distinguished from software.

Easy: you don't patent the model but the real thing.
Patents, if granted at all, should reward experimental work, not
simulation calculation work.  If the "invention" can be reliably
predicted by calculation from known data, then it is not an invention.

The above is the most consistent position and it may lead to a (imho badly
needed) severe restriction of patentability.  Yet we are not so inflexible
as to insist on this position.  We merely need to draw a clear line around
calculation on a universal computer that does not involve any innovative
use of (possibly modellable) forces of nature at all.

If for pragmatic reasons we can currently not completely keep patents out
of the mathematical sphere, that is no reason to dismiss the principle.
A combination of principle and pragmatics is possible.
See the counter-proposal rationale at

        http://swpat.ffii.org/papers/eubsa-swpat0202/prop/

>   This isn't to say that I believe software should be patentable, just
> that the "mathematical methods" argument isn't a reason I would give.

We need that argument for several reasons:
 - the IP system (division between patent & copyright) is built on it
 - Art 27 TRIPs etc force us to rely on it
 - its meaning is confirmed by economic etc analysis

> I believe that adequate economic, market and public policy analysis will
> be what gives us the answer to this question.

Not to forget typology of patented ideas.  Any analysis that is not first
based on a viable typology will only scratch the surface and produce at
best large data cemeteries.

> Direct comparisons between software and other fields where patented
> 'inventions' are claimed or excluded isn't going to offer us much.

Money economics scratches at the surface while the economics of
innovations (patent typology)  goes to the center.

It is unfortunate that the principles of economics are often applied only
to money.  I fact there is also an economics of information, of language
entities (a classical book by the French linguist A. Martinet is called
"economie des changements phonetiques" I think).

I always have problem with a kind of "pragmatic" thinking which refuses to
speak about questions that are less easy to communicate about and takes
refuge to statistics or other statements that can be readily understood
but upon closer look mean very little.

>   And no, Greg.  I am not writing the above to get back on your private
> list after you removed me for disagreeing with you in this list.  I am
> very serious about learning about software patents, and am interested to
> hear all sides of the debate.  My work in software public policy is being
> taken serious enough that I have been hired by a Canadian government
> department to do a report on software patents.

Welcome to the club.
Bernard and I have also been removed from Greg's newsletter, as have some
other critics of Greg.

I maintain a GregNews watch page at

        http://swpat.ffii.org/players/aharonian/

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
135,000 signatures against software patents      http://www.noepatents.org/