LASP

EPLA debate continued

Here is my third post on the IPKat blog in response to earlier comments on my earlier posts:

I am pleased to see my original post has sparked a mini debate. It would be good if you could identify yourself.

In respect of your comments I would briefly comment as follows:

1) My concerns about the current proposals for the EPLA go much further than issues relating to the effect on substantive patent law. If you see my original post, you will see what are ‘some’ of my concerns on EPLA. Substantive law is but one.

2) I really wish (no offence) people would read what I write with care. I do not say at all that patent attorneys’ comments are, to quote you, of ‘no relevance in the EPLA debate’. Far from it. I actually full heartedly agree with what you say about patent attorneys when you say they have a great deal of knowledge about the patent litigation system and that they have a role to play in this debate. If you read my prior posts, you will see that my point is not that patent attorneys do not have a role, they do, it is more what role they should have. Here I think the value of patent attorneys is in contributing to administrative questions regarding the workings of the litigation system and not on the policy on substantive patent law. As Prescott QC said (I paraphrase), the ONLY justification for the granting of patents is that they are for the good of the public. This is a fundamental principle long forgotten or not evidenced by those within the system who make a living from it. The truth is that it should NOT be corporations who have the say (although the reality is different) in what should and should not be patentable. Instead, it is the public (i.e. society as a whole) that SHOULD decide what should be patentable. Therefore, the debate about substantive patent law is a debate for all stakeholders, but clearly some have more of a vested interest than others. Furthermore, it is not right (IMHO) to single out the FSF ‘like’ bodies in that software patents affect ALL companies AND individual developers who write software regardless of licensing/distribution models. It is just that software patents are more of a threat to FOSS simply because of the number of developers often involved and the inherent nature of ‘individual’ (as compared to corporate) contributions to development of many FOSS projects.

3) You ask me what I have against the patenting of algorithms. I think the first thing to say is that you start from (reading your whole text) point ‘a’ on the horizon where point ‘a’ is the assumption that patents are the divine right of ‘inventors’. From a historical study of patents, the truth is very different. It is a decision of society (going back to Prescott QC’s comment on the ratio behind patents) to grant an exclusive and monopolistic right to an inventor (against the principles of an open market and free competition without monopolies) in exchange for the perceived benefit of the furtherance of the arts/sciences as a result of the grant of the patent. The patent system traditionally developed in areas of human endeavour where it was considered that the negative effects of monopolies where outweighed by the advantages of fostering innovation in certain fields which were: a) not protected by other forms of intellectual property; and b) involving areas of human endeavour which involved a significant experimentation cost and trial and error in the physical sphere of unknown results, i.e. applied sciences. As has been cited in numerous reports, governmental studies and research documents, the knowledge based economies such as information technology industries are ill-suited (see my critique on software patents for more details) to the patent system and have already an existing means of protection for ‘endeavour’, being the copyright system, which although not perfect, is far more suited and more economically efficient then the patent system.

Going back to your specific point about algorithms, the answer to your question is an article in itself. However, in brief, it has long been felt that monopolising what are nothing but ‘intellectual processes’ or the application of mathematic principles (i.e. exact sciences, there is no (or insignificant) experimentation costs to the application of exact sciences as compared to the application of applied sciences) was too high a price to pay and did not further the progress of the arts and sciences. As you will see, this is why the EPC excludes mental processes, maths AND computer programs which is, in many ways, a subset of the above, in that the patenting of computer programs involves the patenting of something intangible which has no, in itself, physical manifestation or lengthy or costly experimentation with physical forces which might justify a monopoly grant. Whereas the majority of modern day patents are granted for a (not ‘the’) physical implementation of an idea(s), because computer programs are intangible and not physical, by granting a patent over software you are granting a patent of either maths or functionality (i.e. the ideas behind the program rather than the implementation of an idea). With traditional fields of patentable technology, because there is a patentable physical manifestation, the ideas being implemented ARE ACTUALLY NOT PATENTED, what is patented is instead the SINGULAR PHYSICAL IMPLEMTATION leaving others to freely study the ideas behind the implementation in the physical world and patent OTHER WAYS OF IMPLEMENTING THE SAME IDEAS. With software, given it lacks the physical manifestation (called by Prescott, the physical artefact OR process), what is actually patented is not a SINGULAR IMPLEMENTATION but THE IDEA(S) themselves, meaning that the ideas ARE NO LONGER FREE. This is against the very principles, for example, of the copyright regime, where as embodied in the Software Directive 1991, we are free to study the ideas behind a computer program, SINCE it is in society’s interest that we do so because of the fact that the IT industry has thrived on people being able to use the same ideas and come up with parallel ways (using different source code) to solve the SAME problem (read idea or functionality). Software patents prevent this. When you realise that software (because it is intangible) can be written in MANY DIFFERENT ways to solve the SAME problem, you realise the danger (and hindrance to innovation) that the patent system represents when it, in the case of software, forecloses (monopolises) the actual problem (read functionality or idea also). However, I am not the most eloquent speaker so let me leave you to ponder the following expressions of this principle, one from a German judge and one from a well known campaigner against software patents:

"why should it make any difference whether I run [the ideas] in my head, with pencil and paper or with the normal tool of today's civilisation, which is the universal computer……because the economic rationale behind not granting patents on thoughts applies also here: abstract ideas are, regardless of their applicability to technical problems, produced without experimentation cost, applicable to an infinite range of problems, and replicated at zero cost with no overhead to which patent license fees could be added. The division of the extra cost of patents by the marginal cost (and long-term ideal price) of information goods is a division by zero.” (Hartmut Pilch)

“any attempt to attain the protection of mental achievements by means of extending the limits of the technical invention -- and thereby fact giving up this concept -- leads onto a forbidden path. We must therefore insist that a pure rule of organisation and calculation, whose sole relation to the realm of technology consists in its usability for the normal operation of a known computer, does not deserve patent protection.” (German judge, see footnote 12 of my article in January 2006 for full reference)

Best regards

Cristian

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