Re: [Patents] Pamela Samuelson

[Jean-Marc Le Peuvédic <cocktails@freesurf.fr>]

Americans are very good at organizing administration efficiently. For 
instance, let's consider the patent system. They totally disregard the 
symbolic value of the patent. They analyze the cost effectiveness of the 
patent system and, seeing that /"few patents are ever licensed or 
challenged"/, someone concludes  that  is optimum to delay examination 
until a case comes before a court of justice. Therefore, to get a 
patent, one just asks and pays.

There are many problems with this approach :

1) If a patent is not licensed and not challenged, it does not mean that 
it has no effect on industry, and it does not mean that getting it was a 
waste of resources. It could be a defensive patent, or it could be that 
the owner actually uses it and has no plans to licence it to 
competitors, whatever the royalties, or it could be that the owner is a 
multinational and all the other multinationals that could afford to 
challenge it already have global cross licensing agreements with that one.
    The paper builds on this false argument to justify low standards 
for patent quality. There is no substitute for high quality standards in 
the patent system, and non obviousness tests should be made as clear cut 
and objective as possible (e.g. : no software, documented need in the 
field, ...).

2) The paper says that few patents are licensed but this is actually 
false for software patents since most large swpats portfolios are cross 
licensed globally among the big players.

3) Of course lawyers (the author) like it when they get more work. A 
patent examination in the judicial system is likely to cost more than 
the cost of several hundred patent examinations at the patent office, 
because lawyers are much better paid than patent examiners, and because 
justice requires long and complex procedures.

4) And if someone infringes on a patent, valid or not, knowingly or not, 
with the new tough laws that have been voted everywhere, the infringer 
is going to prepare the challenge from jail, his business shut down, 
while the patent owner remains free and in full business operation. In 
France, people are jailed very often for financial / economic affairs, 
way before they are sentenced. The Americans have different usages, and 
they don't take that in consideration when they ask other countries to 
criminalize infringements.

 The US are not far ahead. They are in the middle of the puddle they 
put themselves in, and they are at the same time calling for us to join 
them in that quagmire and trying to extract themselves from that 
uncomfortable situation. They _will_ quickly find a solution. Never 
forget that the EU does not have a federal state that can change its 
laws as fast as the USA can.

         JM Le Peuvédic

Jacek Gancarson Eurofresh wrote:

> [...snip...] ABOUT THE AUTHOR
>
> Pamela Samuelson is a Chancellor's Professor of Information Management and
> of Law at the University of California at Berkeley.
>
> **********'
>
> The EC, by forcing a narrow-minded, explicity declaration over software
> patentability, will miss the real job opportunity on improvement of patent
> system. US has already moved far ahead in this process.
>
> regards
>
> Jacek Gancarson
>
> ----- Original Message -----
> From: "Erik Josefsson" <ehj@cleosan.com>
> To: <patents@aful.org>
> Sent: Saturday, August 14, 2004 3:38 AM
> Subject: [Patents] Pamela Samuelson
>
>
>  
>
> > Legally Speaking: Why Reform the U.S. Patent System?
> > By
> > Pamela Samuelson
> >
> > Computing professionals have been complaining for years about "bad"
> > software and Internet-related patents. Now there's something they can do
> > about it: Support reforms of the U.S. patent system recommended in three
> > recent high profile reports--one issued by the Federal Trade Commission,
> > one by the National Academy of Sciences, and one by the U.S. Patent and
> > Trademark Office [1, 3, 5]. One short column cannot hope to do justice
> > to all of the recommendations in these reports. But it is possible to
> > highlight three key reforms that deserve support.
> >
> > http://www.sims.berkeley.edu/~pam/papers/cacm%20patent%20reform.pdf
> >
> >
> >    
>
>
>
>