Re: [Patents] Cryptographic patent... and research.

[Russell McOrmond <russell@flora.ca>]

On Sun, 13 Jul 2003, Hartmut Pilch wrote:

> If you ask examiners to "go back to first principles", you will not get
> predictable results on a daily basis.  Thus, "going back to first
> principles" is meaningful only if you can derive an applicable rule from
> these principles.

  Examiners should not be setting public policy, only adhering to it.  I 
am not suggesting examiners go to first principles, but that policy makers 
do.

  Patent examiners exist in a patent offices who often see their clients
as being those who are filing for patents, and thus are inappropriate and
obviously biased in this area of policy.  I believe patent offices 
worldwide have demonstrated this bias with their willingness to distort or 
completely bypass the public policy set out before them.

> The discussion turns wrong when you play with the words of the rule and
> twist in in a way that it degenerates, loses its distinctive meaning and
> thereby also loses its justification in view of "first principles".

  There is always going to be a special interest monopolist closure lobby
who will be attempting to degenerate and abuse the language issue as a
loophole.  If your policy doesn't take this (negative) human nature into
consideration, then it is not robust enough public policy.

  While it appears offensive to some, clearly articulated statutory
exemptions based on adequate study appears to be much more realistic way
to capture the public policy problems than continuing to try to tweak the
definitions of existing words to clarify a particular interpretation.

> But this measuring exercise becomes pointless when, as you seem to be
> proposing, you discard rules altogether and evade the question of what
> is technical and what is an invention.  No "first principles" discussion
> will allow you to evade the question.

  I simply don't see the question you are trying to ask as being the only
critical question, any more than long-winded legal interpretations of
existing acts of parliament are the only critical question.  I am not
discarding rules, but recognizing that the current rules are being abused
and that the current rules do not take into consideration many of the
critical points of public policy.


  - There needs to be ongoing assurances that the policy is achieving its
(properly articulated) purpose, for each subject matter.

  - Patent office must actually achieve adequate levels of patent quality
(I suggest 90-95% validity via the other 3 tests), for each subject matter
to be considered statutory subject matter.


  No discussion of what is or is not "technical", nor discussions of legal
interpretations of existing patent acts, will deal with the two issues
indicated above.

> Patentability is tested by a rule, and this rule is tested by a "first
> principles" discussion.  You can't skip the intermediate step.

  You are looking at this from a different direction than I am.  The
"first principles" discussion happens with policy makers who then set the
rules (statutory, useful, novel and unobvious).  These rules are then
executed (recognizing the lack of ability/capacity/motivation to deal with
"first principles") by patent offices.

  I believe that you are having problems with politicians in Europe that
are pushing an agenda very different than what you believe is proper
policy in this area.  Is it possible that the political presentation is
part of the problem in reaching key parliamentarians?

  I am taking a different approach.  I am trying to speak to bureaucrats
and eventually Canadian parliamentarians (any that will listen) to try to
let them know that there are critical and non-trivial public policy
concerns that need to be addressed.  Convincing them that it needs to be
addressed at all, and giving them some of the important questions to get
answered, comes before the wording or interpretations of legacy policy in
this area.


  This area of policy *IS* radically changing.  The important thing to
note is that it is not parliamentarians or policy makers looking properly
at patent policy that are causing these radical changes, but special
interest patent lobbiests, patent offices and patent courts.  This trend
must be reversed, and we should try as many different methods to deal with
this as possible as to avoid putting all eggs in one basket and loosing.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/