Re: [Patents] Business Week Commentary

[Hartmut Pilch <phm@a2e.de>]

This article is ridiculously flawed from the start:

> DECEMBER 22, 2003
>
> INDUSTRIAL MANAGEMENT
>
>       Commentary: Inventing A Better Patent Law
>       Can Europe spur software innovation while safeguarding intellectual
> property?

In other words: there is some kind of "intellectual property" which must
be "safeguarded" against innovation-spurring policies.

> Patent law is one of the pillars of capitalism, a way to encourage
> innovation and reward creativity by granting inventors temporary
> monopolies on their work.

Capitalism works well without patent law, as many examples (Holland and
Switzerland in early 20th century, Germany and Japan before late 19th etc)
show.  The author is trying to link "intellectual property" to
"capitalism" and patents to "intellectual property", building a set of
false alternatives which allow him to denounce the EP decision as
anti-capitalist (e.g. "left-leaning", "open-source" etc).

> intellectual property or risk compromising its global competitiveness. "If
> you want to compete with the U.S. and China, you have to have patents to
> protect your software," says Jean-Philippe Courtois, the chief executive of
> Microsoft Europe. Adds SAP CEO Henning Kagermann: "What we'd obviously like
> to see is a global standard."

Kagermann is not even arguing for software patents.  And Microsoft's
argument hardly supports Reinhardt's assertioni that Europe is risking
to "compromise its global competitiveness".

> The opposing camp is every bit as adamant. An army of economists,
> left-leaning politicians, and programmers such as Linux creator Linus
> Torvalds argue that software patents are a creativity-crushing weapon
> wielded by multinationals to bash upstarts.

Here Reinhardt is building clichees and trying to discredit the swpat
critics from the start.

> see Europe boldly forswear software patents entirely. Many see the fledgling
> "open-source" software movement -- which has particularly strong momentum in

Why "fledgling" ?

> Can Europe devise a better solution? The whole world is watching. For the
> past two years, the European Union has been working to tighten its existing
> patent laws, while harmonizing the overlapping and contradictory provisions
> in its 15 member states.

There was neither any harmonisation nor any tightening in these proposals
from BSA and similar sources.

> One goal was to preclude the worst excesses of the U.S. system -- for
> instance, by setting tougher standards for proving novelty and
> disallowing patents on business processes.

There was nothing in any of the proposals which could have furthered that
alleged goal.

> But the whole process was upended in late September, when the European
> Parliament -- under heavy last-minute lobbying by open-source advocates

There were no open-source advocates involved at all.  And the cited Linus
Torvalds (who in this case wasn't advocating open-source and isn't much of
an oss advocate in other contexts either) did not play a central role.

> -- unexpectedly approved a draft law that effectively banned all
> software patents. Anti-patent advocates were jubilant.

Anti-software-patent.

> Trade groups, however, were apoplectic. The European Information,
> Communications & Consumer Electronics Technology Industry Assn. labeled the
> draft law a "disaster" that would "rob innovators" of protection and fair
> compensation for their work. Luckily for them, the European Council of
> Ministers has refused to sign off on the legislation, arguing that it is
> rife with inconsistencies.

I didn't read these arguments anywhere.
Also, lucky for whom?

> RAISING THE BAR. The sad fact is that because of such polarization, Europe
> may be blowing an opportunity to devise a more nuanced approach to
> protecting intellectual property. Software-patent opponents are justified in
> fighting to set the bar higher than in the U.S. But an outright ban is no
> solution. Such a move would put Europe at odds with the U.S. and Japan, as
> well as violating rules set out by the World Trade Organization.

Here comes the TRIPs lie again: http://swpat.ffii.org/analysis/trips/

> It could also invalidate thousands of software patents already issued by
> the European Patent Office, erasing billions' worth of intellectual
> property and jeopardizing patent licenses negotiated by companies across
> Europe.

In other words, any kind of "setting the bar higher than in the US" is
unacceptable to Reinhardt.

> A ban also would fly in the face of history. For more than a century, notes
> Harvard Business School professor Josh Lerner, experts with different axes
> to grind have argued that existing patent code isn't suitable to emerging
> technologies, ranging from railroads and pharmaceuticals to genetically
> modified organisms. But time and again, the law has evolved to encompass the
> nuances of new technologies. Lerner believes it's far better to let the
> rules work themselves out than to make industry-specific or
> technology-specific exemptions, such as Europeans are proposing for
> software. Such exemptions, he says, invariably become the subject of fierce
> lobbying motivated by self-interest and profit motives, not by notions of
> justice or social benefit.
>
> To find a middle ground in Europe, both sides must start by turning down the
> rhetorical volume. Opponents of patents should accept that an
> across-the-board ban could hobble a host of vital European and global
> industries, from automotive to telecom to medical systems.

This has yet to be argued.

> After all, most products from these businesses today contain substantial
> amounts of software; a ban on software patents could deny protection to,
> say, a new computer-controlled intravenous drip or a programmable
> switch, where the innovation itself is defined by the software. That
> would erode protection on innovation.

As Reinhardt's title suggests: less "protection" may mean more innovation.

> Both camps also should work to preserve elements of Europe's existing patent
> laws that help limit some American-style problems. For instance, the Paris
> Convention of 1883 requires that for patents to remain exclusive, an
> invention must be exploited in actual products. That helps prevent companies
> from hoarding unused software patents merely for horse trading, as is
> increasingly common across the Atlantic.

That is probably much less feasable than what the EP decided.

> Lastly, Europeans should work to craft a new patent process that is smart
> and fast. That would include rapid publication of applications, speedy
> approvals, and ample opportunity for challenges after the initial grant -- a
> step the FTC also recommended for the U.S. in an October, 2003, report.

The FTC recommended an opposition system which is already implemented in
Europe.  Without making much of a difference of course.

> By offering protection, not suffocation,

"Protection" for one is suffocation for the other.
Less suffocation means less "protection" ==> "erasing billions of
intellectual property already granted by the EPO"

> Europe could set an example for the world in the best way to foster
> digital innovation.

Reinhardt could have set an example in toning down the rhetorical volume
and starting to learn a bit.  The more people learn, the less public
advice they are likely to give to other continents.

Many of the flaws of this editorial should be easy to see even for those
not acquainted with the debates in Europe.   How come the editorial board
accepted this article nonetheless?

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
290,000 votes 2000 firms against software patents    http://noepatents.org/